Impartial Hearing Decision

NEW YORK CITY OFFICE OF ADMINISTRATIVE

TRIALS AND HEARINGS (OATH)

SPECIAL EDUCATION HEARINGS DIVISION

[REDACTED], a Minor, by and through his/her Parent(s),

PETITIONER FINDINGS OF FACT AND

DECISION

against Case # 255804

THE NEW YORK CITY Dustin Johnson, Esq. DEPARTMENT OF EDUCATION, Impartial Hearing Officer

RESPONDENT

FINDINGS OF FACT AND DECISION

I. Introduction

This proceeding arises under the Individuals with Disabilities Education Act (“IDEA”) (20 U.S.C. §§ 1400-1482); the federal regulations implementing IDEA, 34 C.F.R. §§ 300.1, et seq.; Article 89 of the New York State Education Law; and the New York State regulations at 8 NYCRR § Part 200, et seq.

II. Overview – Administrative Procedures

When a student in New York is eligible for special education services, the IDEA calls for the creation of an individualized education program (IEP), which is delegated to a local Committee on Special Education (CSE) that includes, but is not limited to, parents, teachers, a school psychologist, and a district representative (Educ. Law § 4402; see 20 U.S.C. § 1414[d][1][A]-[B]; 34 CFR 300.320, 300.321; 8 NYCRR 200.3, 200.4[d][2]). If disputes occur between parents and school districts, incorporated among the procedural protections is the opportunity to engage in mediation, present State complaints, and initiate an impartial due process hearing (20 U.S.C. §§ 1221e-3, 1415[e]-[f]; Educ. Law § 4404[1]; 34 CFR 300.151-300.152, 300.506, 300.511; 8 NYCRR 200.5[h]-[l]).

New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding "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]). First, after an opportunity to engage in a resolution process, the parties appear at 1 Findings of Fact and Decision an impartial hearing conducted at the local level before an IHO (Educ. Law § 4404[1][a]; 8 NYCRR 200.5[j]). An IHO typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and confront, crossexamine, and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five business days before the hearing; and obtain a verbatim record of the proceeding (20 U.S.C. § 1415[f][2][A], [h][1]-[3]; 34 CFR 300.512[a][1][4]; 8 NYCRR 200.5[j][3][v], [vii], [xii]). The IHO must render and transmit a final written decision in the matter to the parties not later than 45 days after the expiration period or adjusted period for the resolution process (34 CFR 300.510[b][2], [c], 300.515[a]; 8 NYCRR 200.5[j][5]). A party may seek a specific extension of time of the 45-day timeline, which the IHO may grant in accordance with State and federal regulations (34 CFR 300.515[c]; 8 NYCRR 200.5[j][5]). The decision of the IHO is binding upon both parties unless appealed (Educ. Law § 4404[1]). A party aggrieved by the decision of an IHO may subsequently appeal to a State Review Officer (“SRO”) (Educ. Law § 4404[2]; see 20 U.S.C. § 1415[g][1]; 34 CFR 300.514[b][1]; 8 NYCRR 200.5[k]).

A party aggrieved by the decision of an IHO may subsequently appeal to a State Review Officer (SRO) (Educ. Law § 4404[2]; see 20 U.S.C. § 1415[g][1]; 34 CFR 300.514[b][1]; 8 NYCRR 200.5[k]). The appealing party or parties must identify the findings, conclusions, and orders of the IHO with which they disagree and indicate the relief that they would like the SRO to grant (8 NYCRR 279.4). The opposing party is entitled to respond to an appeal or cross-appeal in an answer (8 NYCRR 279.5). The SRO conducts an impartial review of the IHO's findings, conclusions, and decision and is required to examine the entire hearing record; ensure that the procedures at the hearing were consistent with the requirements of due process; seek additional evidence if necessary; and render an independent decision based upon the hearing record (34 CFR 300.514[b][2]; 8 NYCRR 279.12[a]). The SRO must ensure that a final decision is reached in the review and that a copy of the decision is mailed to each of the parties not later than 30 days after the receipt of a request for a review, except that a party may seek a specific extension of time of the 30-day timeline, which the SRO may grant in accordance with State and federal regulations (34 CFR 300.515[b], [c]; 8 NYCRR 200.5[k][2]).

III. Background and Procedural History

Petitioner is the parent of [REDACTED] (“Student” or “Child”). On September 6, 2023, Petitioner filed a Due Process Compliant (“Complaint” or “DPC”) against Respondent, the New York City Department of Education (“NYC DOE” or “DOE” or “District”).

On September 18, 2023, the undersigned Impartial Hearing Officer (“IHO”) was appointed to preside over this case. On October 17, 2023, a Prehearing Conference was held (See Exhibit IHO I). On December 7, 2023, an impartial hearing on the merits of the DPC was held and completed the same day.

IV. Applicable Standards

2 Findings of Fact and Decision

Two purposes of the IDEA (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 239 [2009]; Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. 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; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 [2d Cir. 2014]; R.E. v. New York City Dep't of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012]; 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. Fla. 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]). The Supreme Court has indicated that "[t]he IEP must aim to enable the child to make progress. After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement" (Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. __, 137 S. Ct. 988, 999 [2017]). 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. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]). 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).

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 adequacy of a given IEP turns on the unique circumstances of the child for whom it was created" (Endrew F., 137 S. Ct. at 1001). 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.,

3 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]). 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 Endrew F., 137 S. Ct. at 1001 [holding that the IDEA "requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances"]; 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).

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 300.320[a][1]; 8 NYCRR 200.4[d][2][i]), 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]). 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, 36970 [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).

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

4 Findings of Fact and Decision 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 their unilateral placement provides every service necessary to maximize the student's potential, but rather, must demonstrate that the placement provides education instruction specially designed to meet the unique needs of a student (M.H., 685 F.3d at 252; Gagliardo, 489 F.3d at 112; Frank G., 459 F.3d at 365). 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 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 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).

5 Findings of Fact and Decision

V. Findings of Fact and Discussion

The student has been classified by the DOE as a Preschool Student with a Disability 1 (see Exhibit DOE-1; P-B).

The DOE recommended the student receive Special Education Itinerant Teacher Services (SEIT) 10 hours per week (2:1 basis, Yiddish) as well as Speech Language Therapy twice per week for 30 minutes (group of 2, Yiddish), Speech Language Therapy once per week for 30 minutes (1:1, Yiddish) and Occupational Therapy twice per week for 30 minutes (group of 2) (see DOE-1; P-B).

The related services have not been consistently provided but the student is receiving SEIT services (P-D).

A. FAPE

Based on a thorough and independent review of all the documentary evidence and testimony, as further discussed below, I find that the District failed to offer the student a FAPE as required by Federal and State law for the 2022-2023 and 2023-2024 school years.

At the December 8, 2023, hearing on the merits, the District failed to offer any witness testimony, instead resting its case on the submission of documentary evidence only.

It would be fundamentally unfair to allow either party to rely solely on the submission of documents in meeting its burden under the law, where those documents are rife with double, triple and even unidentified hearsay sources, that cannot be cross examined. While compliance with technical rules of evidence is not required in administrative hearings, under certain circumstances, the receipt of hearsay evidence may be so prejudicial as to have a tendency to deprive a party of a fair hearing (see Strain v. Sarafan, 57 A.D.2d 525, 393 N.[REDACTED]2d 572, N.Y.A.D. (1977), where the hearsay testimony was of vital importance and should have been subjected to cross-examination by the petitioner…the petitioner was deprived of a meaningful hearing; see Dukes v. New York City Housing Authority, 63 A.D.2d 690, 404 N.[REDACTED]2d 889, N.Y.A.D. (1978), holding that the excessive reliance on hearsay evidence effectively denied petitioner the right to cross-examine adverse witnesses; see Claim of Evans, 254 A.D.2d 564, 678 N.[REDACTED]2d 696, N.Y.A.D. (3 Dept. 1998), where in an unemployment compensation proceedings, an administrative law judge properly exercised discretion to exclude hearsay evidence to protect employer’s fundamental right of cross-examination, where claimant proffered written hearsay statement, authored by acquaintance of the employer’s president, which allegedly indicated that claimant did not resign but was fired, but the acquaintance failed to answer subpoena directing him to testify at hearing, thereby denying employer the opportunity to cross-examine him on the statement; see Alvarado v. State of New York, 110 A.D.2d 583, 488 N.[REDACTED]2d 177 (1st Dept. 1985), holding that a license suspension hearing against a boxer and his managers was faulty because of a lack of an 1 The student's eligibility for special education and related services is not in dispute (see 34 CFR 300.8[c][1]; 8 NYCRR 200.1[zz][1]).

6 Findings of Fact and Decision opportunity “to cross-examine certain witnesses whose reports were introduced into evidence without their testifying, in violation of SAPA Section 306, subd. (3).

The DOE has the burden of production and persuasion at an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of production and persuasion regarding the appropriateness of such placement (See Educ. Law § 4404[1][c]).

Here, the DOE failed to offer any testimony or persuasive evidence to refute any of the allegations contained within the parent’s DPC and failed to offer any legally supportable justifications for the DOE’s failure to implement the recommended services. A reviewing court may fairly expect those authorities to be able to offer a cogent and responsive explanation for their decisions (see Endrew F. v. Douglas Cnty. Sch. Dist. RE-1, 137 S. Ct. 988, 1002 (2017).

For these reasons, for failing to sustain its burden of proof, for failing to offer a cogent and responsive explanation for its actions and inactions, and as supported by the record, I find that the District failed to offer the student a Free Appropriate Public Education for the 2022-2023 and 2023-2024 school years as required by federal and state law.

B. Compensatory Services

The Petitioner here is requesting an order that the student be provided compensatory services of an amount, type, and scope to be determined by the hearing officer (P-A).

Compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case (Wenger v. Canastota, 979 F. Supp. 147 [N.D.N.Y. 1997]). The purpose of an award of compensatory education is to provide an appropriate remedy for a denial of a FAPE (see E.M. v. New York City Dep't of Educ., 758 F.3d 442, 451 [2d Cir. 2014]; Newington, 546 F.3d at 123 [holding that compensatory education is a remedy designed to "make up for" a denial of a FAPE]; see also E. Lyme, 790 F.3d at 456; Reid v. Dist. of Columbia, 401 F.3d 516, 524 [D.C. Cir. 2005] [holding that, in fashioning an appropriate compensatory education remedy, "the inquiry must be fact-specific, and to accomplish IDEA's purposes, the ultimate award must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place"]; Parents of Student W. v. Puyallup Sch. Dist., 31 F.3d 1489, 1497 [9th Cir. 1994]).

Accordingly, an award of compensatory education should aim to place the student in the position he or she would have been in had the district complied with its obligations under the IDEA (see Newington, 546 F.3d at 123 [holding that compensatory education awards should be designed so as to "appropriately address [the problems with the IEP"]; see also Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 [11th Cir. 2008] [holding that "[c]ompensatory awards should place children in the position they would have been in but for the violation of the Act"]; Bd. of Educ. of Fayette County v. L.M., 478 F.3d 307, 316 [6th Cir. 2007] [holding that "a flexible approach, rather than a rote hour-by-hour compensation award, is more likely to address [the student's] educational problems successfully"]; Reid, 401 F.3d at 518 [holding that compensatory education is a "replacement of educational services the child should have received

7 Findings of Fact and Decision in the first place" and that compensatory education awards "should aim to place disabled children in the same position they would have occupied but for the school district's violations of IDEA"]).

Here, as discussed above, the District was found to have failed to meet its burden to prove that it offered the Student a FAPE for the 2022-2023 and 2023-2024 school years. To be sure, the District was required under the due process procedures set forth in New York State law to address its burdens by describing its views, based on a fact-specific inquiry set forth in an evidentiary record, regarding an appropriate compensatory education remedy that would most reasonably and efficiently place the student in the position that she would have been in but for the denial of a FAPE (Educ. Law § 4404[1][c]; see M.M. v. New York City Dep't of Educ., 2017 WL 1194685, at *4 [S.D.N.Y. Mar. 30, 2017] [noting the SRO's finding that the district had the burden of proof on the issue of compensatory education]; see also E. Lyme, 790 F.3d at 457; Reid, 401 F.3d at 524). Where, as here, New York State law has placed the burden of production and persuasion at an impartial hearing on the District, it is not an IHO's responsibility to craft the District's position regarding the appropriate compensatory education remedy.

Notwithstanding the above, based on a thorough and independent review of the record, I find that the totality of the evidence in the hearing record, including the District's failure to sustain its burden of proof, supports a finding that the student here is entitled to compensatory education to remedy the District's denial of a FAPE during the 2022-2023 and 2023-2024 school years at issue.

I find that since the District failed to provide the Student with a FAPE for the 2022-2023 and 2023-2024 school years, any award of compensatory education shall be limited to only the amount of service owed to the student and not provided for during the 2022-2023 and 2023-2024 school years.

As such, the District will be ordered to provide the student with 24 thirty-minute sessions of Occupational Therapy to account for the portion of missed Occupational Therapy services during the 2022-2023 school year. Additionally, the District will be ordered to provide the student with 36 thirty-minute sessions of Speech Language Therapy sessions to account for the portion of missed Speech Language services during the 2022-2023 school year. These related services shall be provided by a certified special education teacher of the District’s own choosing, which may be a District employee, unless the parties shall otherwise agree.

In addition to the above, the District shall be ordered to provide the student with the recommended special education and related services for the 2023-2024 school year. These related services shall be provided by a certified special education teacher of the District’s own choosing, which may be a District employee, unless the parties shall otherwise agree.

Regarding the services unilaterally obtained by the parent and already provided by an independent agency, that matter is a bit more complicated.

I note as a threshold matter that nowhere within the petitioner’s Due Process Complaint is there a request for reimbursement of any services unilaterally obtained by the parent, or any request for direct funding of any services unilaterally obtained by the parent. Furthermore,

8 Findings of Fact and Decision nowhere within the DPC is there a request for a prospective order for related services by an agency of the parent’s own choosing for the 2023-2024 school year (see generally P-A).

Additionally, the record is devoid of any testimony or evidence that the parent notified the District of the parent’s intent to obtain services unilaterally and seek funding or reimbursement from the District. Finally, the record is also devoid of any evidence of a contractual arrangement between the parent and the private service provider. In fact, testimony elicited at the hearing leads one to conclude that no contract exists between the parent and the service provider.

As a result, the record does not support the conclusion that the parent is genuinely obligated to pay for any of the services provided to the student by the independent service provider or that the parent has suffered any actual harm at this time. Also absent from the record is any evidence that the parent has actually expended any funds to pay for the services provided to the student that he should be reimbursed for. Additionally absent from the record is any evidence that the parent does not have the financial resources to pay for the services and requires a direct pay remedy.

Therefore, based on the above, the equities do not support any reimbursement or direct funding award. Furthermore, I decline to award any prospective relief or any relief not specifically contained within the DPC.

As there is no proof that the parent is obligated to pay for the services provided to the student, no proof that the parent has expended any funds to pay for the services provided by the independent provider for the 2023-2024 school year, and no proof that the parent lacks the financial resources to pay for the services already provided, I am not convinced that any dispute regarding any amount purportedly owed to [REDACTED] for educational services already provided to the student during the 2023-2024 school year involves either the parent or student's legal interests. Instead, it is far more likely that any dispute on this topic is a matter to be resolved between the District and [REDACTED]; but [REDACTED], who has the real financial interest in the outcome of any dispute here, is not a proper party to a due process proceeding (34 CFR 300.507[a][1]). Therefore, any dispute regarding services provided by [REDACTED] should properly be addressed in a different forum. It is not an appropriate equitable relief in this due process proceeding to require the District to either reimburse the parent for any costs or to directly fund [REDACTED] for services provided without any contractual arrangement with the parent, without any expenditure of funds by the parent, and without any notice of the parents intent to unilaterally place the student and seek reimbursement provided to the DOE.

However, because the student is entitled to special education and related services for the 2023-2024 school year based on the recommendations contained within the students March 2023 IEP, the student is to be provided a bank of compensatory hours for any hours of special education and related services missed from the beginning of the 2023-2024 school year up to the date of this decision. Those special education and related services shall be provided by a certified special education teacher of the District’s own choosing, which may be a District employee, unless the parties shall otherwise agree.

9 Findings of Fact and Decision

E. Independent Education Evaluations

In the DPC, Petitioner requests funding for an independent neuropsychological evaluation (see P-A). An independent examination of the record finds that no relief is warranted.

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]; see 8 NYCRR 200.1[z]). Parents have the right to have an IEE conducted at public expense if the parent expresses disagreement with an evaluation conducted by the district and requests that an IEE be conducted at public expense (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"]; 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]). 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 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 Letter to Carroll, 68 IDELR 279 [OSEP 2016]).

The IDEA and state and federal regulations guarantee parents the right to obtain an Independent Educational Evaluation (“IEE”) (see 20 U.S.C. § 1415[b][1]; 34 CFR 300.502; 8 NYCRR 200.5[g]), which is defined by State regulation as "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]; see 34 CFR 300.502[a][3][i]). Parents have the right to have an IEE conducted at public expense if the parent expresses disagreement with an evaluation conducted by the district and requests that an IEE be conducted at public expense (34 CFR 300.502[b]; 8 NYCRR 200.5[g][1]; see K.B. v Pearl Riv. 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"]; 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]).

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 not at public expense (34 CFR 300.502[b][3]; 8 NYCRR 200.5[g][1][v]). Additionally, both federal and state regulations provide that "[a] parent is entitled to only one [IEE] at public expense each time the public agency conducts an evaluation

10 Findings of Fact and Decision with which the parent disagrees" (34 CFR 300.502[b][5]; 8 NYCRR 200.5[g][1]). The Second Circuit Court of Appeals has recently found that, if a district and a parent agree that a student should be evaluated before the required triennial evaluation, "the parent must disagree with any given evaluation before the child's next regularly scheduled evaluation occurs" or "[o]therwise, the parent's disagreement will be rendered irrelevant by the subsequent evaluation" (D.S. v. Trumbull Bd. of Educ., 975 F.3d 152, 170 [2d Cir. 2020]).

Outside of the instant DPC, the record is devoid of any proof that the Parent expressed a disagreement with an evaluation conducted by the district and requested that an IEE be conducted at public expense. A review of the hearing record shows that the parent first requested funding for evaluations in the September 2023 due process complaint (see P-A).

In past decisions, SROs have held that a parent may request a district funded IEE in a due process complaint notice in the first instance (see Application of a Student with a Disability, Appeal No. 19-094). This is not exactly the process contemplated by the IDEA and its implementing regulations (34 CFR 300.502[b]; 8 NYCRR 200.5[g][1]), and, in most instances it is likely that a parent would be in a better position to elicit an agreement from the district to fund an IEE if the IEE was requested outside of the more formal context of an impartial hearing. The practice of a parental "due process compliant IEE request" is increasing in frequency and I am not convinced it is permissible for a parent to commence an impartial hearing to seek an IEE at public expense and/or communicate their disagreement with a district evaluation for the first time therein (see Application of a Student Suspected of Having a Disability, Appeal No. 22-105).

Here, the record is devoid of testimony or evidence of any actual dispute regarding evaluations or a request by the parent outside the instant DPC for an independent evaluation. The record is also devoid of testimony or evidence of a specific evaluator the parent is seeking to have evaluate their student or the specific costs of such evaluations. Even assuming arguendo that relief here was warranted, I would not be inclined to provide the petitioner with a blank check and would require specific proof of the qualifications and reasonableness of the rate being requested.

Therefore, for the above reasons, funding for independent evaluations is not appropriate and is denied.

VI. Conclusion and Orders

In summary, a review of the evidence in the hearing record demonstrates that the District denied the student a FAPE and that the student is entitled to the recommended special education programs and services contained within the student’s March 14, 2023, IEP. Equitable considerations also support an award of compensatory education as discussed above and ordered below.

I have reviewed the parent’s remaining contentions and find them to be either unnecessary to this decision, without merit, beyond my jurisdiction, too vague to be of use, or without sufficient basis in the record for a finding and award of relief. Accordingly, any relief

11 Findings of Fact and Decision not specifically discussed in this decision is denied, and all the parent’s remaining claims not discussed herein are dismissed with prejudice.

IT IS HEREBY ORDERED that, per the student’s March 14, 2023, IEP, the student is entitled to receive Special Education Itinerant Teacher Services (SEIT) 10 hours per week (2:1 basis, Yiddish) as well as related services of Speech Language Therapy twice per week for 30 minutes (group of 2, Yiddish), Speech Language Therapy once per week for 30 minutes (1:1, Yiddish) and Occupational Therapy twice per week for 30 minutes (group of 2);

IT IS FURTHER ORDERED that the District shall provide the student with 24 thirty-minute sessions of Occupational Therapy as compensatory services to account for the portion of missed Occupational Therapy services during the 2022-2023 school year. Additionally, the District will be ordered to provide the student with 36 thirty-minute sessions of Speech Language Therapy as compensatory services to account for the portion of missed Speech Language services during the 2022-2023 school year. These compensatory related services shall be provided by a certified special education teacher of the District’s own choosing, which may be a District employee, unless the parties shall otherwise agree;

IT IS FURTHER ORDERED that, as the student is entitled to special education and related services for the 2023-2024 school year based on the recommendations contained within the students March 2023 IEP, the student is to be provided a bank of compensatory hours for any hours of special education and related services missed from the beginning of the 2023-2024 school year up to the date of this decision. Those compensatory special education and related services shall be provided by a certified special education teacher of the District’s own choosing, which may be a District employee, unless the parties shall otherwise agree.

IT IS FURTHER ORDERED that all compensatory services ordered herein and not utilized by the student shall expire on August 31, 2024.

DATED: SO ORDERED

12/20/2023 /s/ Dustin Johnson

Dustin Johnson, Esq., IHO

12 Findings of Fact and Decision

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 proceedings 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.

13 Findings of Fact and Decision

IMPARTIAL HEARING OFFICER'S CERTIFICATION OF THE RECORD

I, Dustin Johnson, Impartial Hearing Officer in this matter, do hereby certify that the below Index of Exhibits included within this Findings of Fact and Decision itemizes the entire record before me. I further certify that the materials included in the record are either the original or a true copy of the original materials that were provided to me in this matter.

DATED: CERTIFIED BY

12/20/2023 /s/ Dustin Johnson

Dustin Johnson, Esq., IHO

EXHIBITS

P-A. Parent Date Title Number Exhibit of Pages Hearing Request 9/6/23 5 pages

P-B. IEP ^[14] 3/14/23

P-C. Notice 3/2023 2 pages

P-D. Affidavit 11/6/23 5 pages

P-E. Affidavit DOE Date Title Number Exhibit of Pages 11/27/23 8 pages

DOE-1 3/14/23 IEP 14

DOE-2 Various Summary Report 29 DOE-3 1/30/23 Consent 1 DOE-4 3/20/23 Notice 1 IHO Date Title Number Exhibit of Pages IHO-1 10/17/23 PHC Summary and Order 9

Footnotes

[14] Findings of Fact and Decision