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NYC: 267770
FINDINGS OF FACT AND DECISION
Case Number: 267770
Student’s Name:
Date of Birth:
School District: NYC DOE
Hearing Requested by: Parent
Request Date/Date Complaint Filed: 1/2/2024
Date(s) of Hearing: 7/26/2024
Actual Record Closed Date: 8/13/2024
Date of Decision: 8/19/2024
Hearing Officer: Paul J. DeSena
INTRODUCTION
This is a decision in a hearing under the Individuals with Disabilities Education Act [hereinafter, “IDEA”] and Section 504 of the Rehabilitation Act of 1973. The Student was years of age at the start of the 2023/24 school year, attending the Private School. (Ex. A, at 1). In the Due Process Complaint [hereinafter, “DPC”], the Parent alleged that the Department of Education [hereinafter, “District” or “DOE”] failed to provide the Student a Free Appropriate Public Education [hereinafter, “FAPE”] for the 2023/2024 school year. (Ex. A, at 1).
The Parent requests tuition reimbursement for the 2023/24 school year for Student’s private program not approved by the Commissioner of Education for the education of students with disabilities. ( Id , at 2).
As discussed below, I find that the District failed to provide the Student a FAPE for the 2023/24 school year. Additionally, the Private School offered the Student specially designed instruction sufficient to meet the Student’s needs and the equities support the Parent’s requested relief. Finally, I find that the Student is entitled to reimbursement for the psychological evaluation taken during the 2023/24 school year.
PROCEDURAL HISTORY
The Parent filed this case on 1/2/2024. (Ex. A). I was appointed to hear this case on 1/2/2024. I conducted a Pre-Hearing Conference [hereinafter, “PHC”] with the Parties on 2/2/2024. ( See generally , PHC Tr.). A hearing was held on 7/26/2024. ( See generally , Hearing Tr.). The Parent and the District were represented by counsel ( Id .).
At the hearing, the District introduced exhibits 1-6), made opening and closing statements, and cross- examined one of the Parent’s witnesses. ( See generally , Hearing Tr.). The District averred that they had provided the Student with a FAPE, and contested that 1) the Parent’s unilateral placement was appropriate for the Student, and 2) that the equities balanced in the Parent’s favor ( Id ., at 18-20, 27-28, 33, 38-52, and 59-67).
The Parents argued that the District denied the Student a FAPE, that the Parent’s unilateral placement was appropriate for the Student, and that the equities supported an award of tuition. ( See generally , Hearing Tr.). The Parents introduced exhibits A–M into evidence. [1] ( Id. , at 20-25). The Parent’s attorney delivered an opening statement. ( Id ., at 28-32). The Parent called two witnesses, the Student’s Parent, and a Director at the Private School (both by affidavit). (Exs. L, M). The Parent’s attorney made a closing statement. (Hearing Tr., at 67-74). This order follows.
FINDINGS OF FACT
After reviewing the record generated at the hearing, I make the following findings of fact and determinations.
At the start of the 2023/24 school year, the Student was a -year-old student who attended the Private School. (Ex. A, at 1). The 2023/24 school year was the Student’s eighth year in the Private School. (Hearing Tr., at 40-42). Via psychoeducational evaluation on 2/27/2023, Student is diagnosed with Attention Deficit Hyperactivity Disorder, Developmental Coordination Disorder, and specific learning disorders with impairments in reading, written expression, and mathematics, on top of previous diagnoses of language disorder and dysgraphia. (Ex. D, at 1, 13). Critically, the Student’s clinical psychologist notes that the Student “has been progressing well in his small inclusion high school where he receives individualized attention to academics in classes with limited enrollment and where he receives one-on-one support on a regular basis with respect to such executive functioning skills as time management, organizing, and planning, as these relate to completing assignments, organizing his thoughts on paper, and studying for tests” and that the Student “continues to require these supports with a teacher who consults with his subject teachers on a regular basis in order to know exactly where he needs strengthening.” (Ex. D, at 13).
Despite this, and after the Student’s IEP meeting dated 3/7/2023, which the Parent attended, the District recommended a 10-month program in an ICT classroom with Group SETSS services for 3 hours per week and 3:1 Counseling 2x30. (Ex. 1, at 17). Upon contacting the Student’s placement, the Parent testified that the school would not be able to implement the SETSS services and that the ICT classroom could contain up to 34 students. (Exs. B, C; Ex. L, at ¶ 11; Hearing Tr., at 40-42). The District did not meaningfully controvert this testimony at the Hearing. ( See generally , Hearing Tr.) Accordingly, on 8/15/2023, the Parent sent the District a 10-day notice, informing the District of their intent to place the Student in a Private School, which the District received.
The Private School is an “independent nursery through twelfth-grade school in New York, New York.” (Ex. M, at ¶ 7). Within the school, the Student participates in the “Quest” program, which is “an integrative support program for students who have special education diagnoses and require significant support in school.” (Ex. M, at ¶ 8). Students in the Quest program have built-in periods where they receive 1:1 support from classroom teachers, and otherwise, classes at the Private School have between 8 and 18 students, but some classes are as small as 4 students. (Ex. M, at ¶¶ 8, 20). There are 12 students in the Student’s English class, 9 students in History, 11 students in Physics, 13 Students in his Math class, and 4 students in each of his Computer Science and Mandarin courses. (Ex. M, at ¶¶ 31). The class was grouped according to chronological age, learning profile, and social abilities. (Ex. M, at ¶ 28).
Of the teachers for his courses, four had their Master’s degree and one had a double bachelor’s degree. (Ex. M, at ¶ 30). All completed the Private School’s teacher training. ( Id. ).
The Student received multiple adaptations in order to help him succeed, such as individualized lesson plans, small group lessons, teaching strategies tailored to Student’s with language disorders, executive functioning disorders, or self-esteem issues, accessible readings, modified and clarified directions for assignments, recordings, when necessary, to replace or supplement readings, along with the supports tailored specifically to the Student as part of the Private School’s “Quest” program. (Ex. M, at ¶ 32).
The Director of the REDACTED program at the Private School testified that the Private School “provides [the Student] with the necessary structure and support to enable him to make progress.” (Ex. M, at ¶ 40). This is broadly corroborated by the Student’s progress reports. ( See , e.g. , Ex. K).
The tuition at the Private School for the 10-month program is $90,060 for the 2023/24 School year, which includes the base tuition and all related services. (Ex. L, at ¶ 13).
CONCLUSIONS OF LAW AND ANALYSIS
When a parent believes that a school district has failed to provide a student with a FAPE, a parent may unilaterally enroll the child in a private school and seek tuition payment from the school district by filing a due process complaint. ( Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist. , 773 F.3d 372, 376 [2d Cir. 2014] (quoting Reyes ex rel. R.P. v. New York City Dep’t of Educ. , 760 F.3d 211, 215 [2d Cir. 2014]). The due process complaint may address “any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education.” (20 U.S.C. § 1415[b][6][A]).
A district must pay for the cost of a student’s tuition at a private school if the three prongs of the Burlington/Carter test are met: (1) the DOE denied the student a FAPE; (2) the private placement is appropriate; and (3) the equities favor an order of tuition. ( See Sch. Comm. of Burlington v. Dep’t of Educ. , 471 U.S. 359, 367 [1985]; Florence County Sch. Dist. Four v. Carter , 510 U.S. 7, 12-15 [1993]).
In IDEA due process hearings in New York, school districts have the burden of proof – including the burden of production and burden of persuasion – except that a parent or person in parental relationship seeking tuition reimbursement for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement. (NY Educ. Law § 4404[1][c]).
A. Prong I
The IDEA (20 U.S.C. §§ 1400-1482) contemplates two specific purposes designed 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]). 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).
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]). A free and appropriate public education can be said to be 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 ruled 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. 386, 137 S. Ct. 988, 999 [2017]).
Although school districts must comply with the checklist of procedures for developing a student's IEP, “[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 Second Circuit 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 IHO 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).
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), but 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). Indeed, “[t]he 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), and an “appropriate” education, “not one that provides everything that might be thought desirable by loving parents,” is what is required. ( 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 also Grim , 346 F.3d at 379). 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) but are required to 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) and designed to be provided in the least restrictive environment (hereinafter, “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 also Newington , 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist. , 489 F.3d 105, 108 [2d Cir. 2007]; and Walczak , 142 F.3d at 132.). An appropriate IEP must include a description of the Student’s present levels of academic achievement and functional performance (34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]), and outline annual goals specifically designed to address the Student’s needs resulting from his disability to make progress in the general education curriculum (34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]) through the use of appropriate special education services. (34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]). Although not every student can be expected to attend a regular education curriculum, the IEP “must be appropriately ambitious in light of his 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).
Although federal and State regulations do not expressly state that a district must provide a written notice to the parents in any particular format describing the "”bricks and mortar” location to which a student is assigned and where the student's IEP will be implemented, once an IEP is developed and a parent consents to a district's provision of special education services, the IDEA is clear such services must be provided to the student by the district in conformity with the student's IEP (20 U.S.C. § 1401[9][D]; 34 CFR 300.17[d]; see 20 U.S.C. § 1414[d]; 34 CFR § 300.320). When determining how to implement a student’s IEP, the assignment of a particular school is an administrative decision, provided it is made in conformance with the CSE's educational placement recommendation ( see K.L.A. v. Windham Southeast Supervisory Union , 371 Fed. App'x 151, 154, 2010 WL 1193082, at *2 [2d Cir. Mar. 30, 2010]; White v. Ascension Parish Sch. Bd. , 343 F.3d 373, 379 [5th Cir. 2003]; see Veazey v. Ascension Parish Sch. Bd. , 121 Fed. App'x 552, 553 [5th Cir. Jan. 5, 2005]; A.W. v. Fairfax Co. Sch. Bd. , 372 F.3d 674, 682 [4th Cir. 2004]; Concerned Parents & Citizens for the Continuing Educ. at Malcolm X Pub. Sch. 79 v. New York City Bd. of Educ. , 629 F.2d 751, 756 [2d Cir. 1980]). To be clear there is no requirement in the IDEA that a student's IEP name a specific school location ( see, e.g., T.Y. , 584 F.3d at 420). Moreover, parents generally do not have a procedural right in the specific locational placement of their child ( see Luo v. Baldwin Union Free Sch. Dist. , 2013 WL 1182232, at *5 [E.D.N.Y. Mar. 21, 2013], aff'd , 556 Fed. App'x. 1, 2013 WL 6726899 [2d Cir Dec. 23, 2013]; J.L. v. City Sch. Dist. of New York , 2013 WL 625064, at *10 [S.D.N.Y. Feb. 20, 2013]; see also R.E. , 694 F.3d at 191-92 [finding that a district may select a specific public school site without the advice of the parents]; F.L. v. New York City Dep't of Educ. , 2012 WL 4891748, at *11 [S.D.N.Y. Oct. 16, 2012] [noting that parents are not procedurally entitled to participate in decisions regarding public school site selection]).
There is, however, district court authority indicating that a parent has a right to obtain information about an assigned public school site ( see H.L. v. New York City Dep't of Educ. , 2019 WL 181307, at *9 [S.D.N.Y. Jan. 11, 2019] [noting that "[i]n light of M.O. , courts have found that parents have the right to obtain timely and relevant information regarding school placement, in order to evaluate whether the IEP can be implemented at the proposed location"]; F.B. v New York City Dep't of Educ. , 132 F. Supp. 3d 522, 538-45 [S.D.N.Y 2015] [finding that the parents "had at least a procedural right to inquire whether the proposed school location had the resources set forth in the IEP"]; V.S. v New York City Dep't of Educ. , 25 F. Supp. 3d 295, 299-301 [E.D.N.Y. 2014] [finding that the "parent's right to meaningfully participate in the school selection process" should be considered rather than the "parent's right to determine the actual school selection"]; C.U. v. New York City Dep't of Educ. , 23 F. Supp. 3d 210, 227-29 [S.D.N.Y. 2014] [holding that "parents have a procedural right to evaluate the school assignment" and "acquire relevant information about" it]).
Although not explicitly stated in federal or State regulation, implicit in a district's obligation to implement an IEP is the requirement that, at some point prior to or contemporaneous with the date of initiation of services under an IEP, a district must notify parents in a reasonable fashion of the bricks and mortar location of the special education program and related services in a student's IEP ( see T.C. v. New York City Dep't of Educ. , 2016 WL 1261137, at *9 [S.D.N.Y. Mar. 30, 2016] [“a parent must necessarily receive some form of notice of the school placement by the start of the school year”]; Tarlowe , 2008 WL 2736027, at *6 [a district's delay does not violate the IDEA so long as a public school site is found before the beginning of the school year]). While such information need not be communicated to the parents by any particular means in order to comply with federal and State regulation, it nonetheless follows that it must be shared with the parent before the student's IEP may be implemented. Furthermore, as the Southern District provided in T.C. v. N.Y.C. Dep't of Educ. , 15-CV-3477 [VEC] [S.D.N.Y. March 30, 2016]: “There is no requirement that a parent receive written notice of a school placement before the beginning of the school year…[n]onetheless, in order to provide a FAPE, a parent must necessarily receive some form of notice of the school placement by the start of the school year. ( Id. [internal citations omitted]).
The Parent alleges that the District committed a number of procedural and substantive violations, specifically, inter alia , that (1) District failed to provide a school location that could implement the IEP as written, and 2) the District failed to create a substantively appropriate IEP.
In the instant matter, the record is clear that the District held an IEP meeting in which the Parent meaningfully participated and thereafter timely notified the Parent on 4/28/2023 as to the IEP team’s recommendation as well as the brick-and-mortar location at which the Student could access the IEP services. (Exs. 2, 3). The record is also clear that the IEP team was fully and duly constituted. ( See 34 CFR § 300.321[a]). I find, however, that though the District provided timely notice of the Student’s brick-and-mortar placement, the District did not meet its burden as to establishing whether that location would be able to implement the Student’s IEP services as written. Indeed, the Parent testified that upon contacting the Student’s placement, he was told that the school would not be able to implement the SETSS services and that the ICT classroom could contain up to 34 students. (Exs. B, C; Ex. L, at ¶ 11; Hearing Tr., at 40-42). The District did not meaningfully controvert this testimony at the Hearing. ( See generally , Hearing Tr.). The fact that the District’s chosen location would be unable to implement fully half of the related services the Student was slated to receive renders this failure a procedural violation of the IDEA.
Further, I find that the District failed to evaluate the Student across all areas of suspected need. A district must ensure that a student is appropriately assessed in all areas related to the suspected disability, including, where appropriate, social and emotional status. (20 U.S.C. § 1414[b][3][B];0 34 CFR 300.304[c][4]; 8 NYCRR 200.4[b][6][vii]). 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] [emphasis added]). Here, despite the Student being due, ostensibly, for a triennial reevaluation, the District conducted no evaluations of its own, even though 1) the IEP recognized the Student as one with a learning disability, and 2) the Student had no fewer than six diagnoses. (Ex. 1, at 1, 6). I find the District’s failure to evaluate the Student and essentially leave the duties of follow-up evaluation to the Parent to be a procedural violation of the IDEA.
Finally, I find the District’s recommendations to be substantively inappropriate. As a threshold matter, given the District’s failure to evaluate the Student across all areas of suspected need, the District’s recommendations are, by implication, suspect. Further, where, as here, the Student is placed in a Private School where his largest class is 13:1, and where, as here, the Student’s clinical psychologist has recommended a small class setting with a low student-teacher ratio, (Ex. D, at 13), I find that the District placements of a 34-student ICT class to be substantively inappropriate for the Student and not tailored – at all – to address the Student’s unique educational needs.
Based on the totality of the evidence, I find that the District failed to meet its burden of proof as to Prong I of the Burlington/Carter standard. Accordingly, for the above reasons, I find that the District failed to offer the Student a FAPE for the 2023/24 school year.
B. Prong II
A private school placement must be “proper under the Act.” ( Carter , 510 U.S. at 12, 15; Burlington , 471 U.S. at 370). This means that the Private School must offer an educational program that meets the student’s special education needs. ( See Gagliardo v. Arlington Cent. Sch. Dist. , 489 F.3d 105, 112, 115 [2d Cir. 2007]; and Walczak v. Fla. Union Free Sch. Dist. , 142 F.3d 119, 129 [2d Cir. 1998]). Parents seeking reimbursement “bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate.” ( Gagliardo , 489 F.3d at 112). Additionally, “[s]ubject 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]).
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). Instead, they need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a student with a disability, supported by such services as are necessary to permit the child to benefit from instruction. ( Gagliardo , 489 F.3d at 112 citing Frank G. , 459 F.3d at 364-65). 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 C.F.R. § 300.39[a][1]; 8 NYCRR § 200.1[ww]; Hardison , 773 F.3d 386).
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 benefits. Still, 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. 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; and see Gagliardo , 489 F.3d at 115).
In this case, the Private School meets the Frank G. standard and “provides educational instruction specially designed to meet the unique needs” of the Student that will enable him to make progress. First, the Private School provides the Student with small class sizes, which he needs and benefits from. Second, the Private School provides trained teachers who can support the Student. Third, the Private School individualizes its instruction for the Student by providing copious adaptations that the Student needs. Finally, the Student is making progress at the Private School. I will discuss each in turn.
First, the Private School is appropriate because of its smaller class sizes. Small class sizes can be a factor weighing in favor of the appropriateness of the parent’s unilateral placement. ( Frank G. , 459 F.3d at 365 citing Knable v. Bexley City Sch. Dist ., 238 F.3d 755, 768 [6th Cir. 2001]). Small class sizes at a unilateral placement “come[] within the IDEA definition of ‘special education,’ namely, ‘specially designed instruction . . . to meet the unique needs of a child.’” ( Frank G. , 459 F.3d at 365 (citing 20 U.S.C. § 1401[29]). The Private School is an “independent nursery through twelfth-grade school in New York, New York.” (Ex. M, at ¶ 7). Within the school, the Student participates in the “REDACTED” program, which is “an integrative support program for students who have special education diagnoses and require significant support in school.” (Ex. M, at ¶ 8). Students in the REDACTED program have built-in periods where they receive 1:1 support from classroom teachers, and otherwise, classes at the Private School have between 8 and 18 students, but some classes are as small as 4 students. (Ex. M, at ¶¶ 8, 20). There are 12 students in the Student’s English class, 9 students in History, 11 students in Physics, 13 Students in his Math class, and 4 students in each of his Computer Science and Mandarin courses. (Ex. M, at ¶¶ 31). The class was grouped according to chronological age, learning profile, and social abilities. (Ex. M, at ¶ 28). Therefore, based on this educational program, I find that this factor tends to establish the appropriateness of the private school placement.
Second, the Private School is appropriate because it provides trained teachers to support the Student. The law in this circuit is that “a private placement need not provide certified special education teachers…for the disabled student,” but the Private School nevertheless ensures that its teachers have the training and specialization necessary to teach the Student based on her needs. ( Frank G. , 459 F.3d at 364). Of the teachers for his courses, four had their Master’s degree and one had a double bachelor’s degree. (Ex. M, at ¶ 30). All completed the Private School’s teacher training. ( Id. ). Accordingly, I find that the Student’s providers have sufficient training to teach the Student based on his needs.
Third, the Private School is appropriate because it individualizes its instruction for the Student by providing copious adaptations that the Student needs. When a teacher at the unilateral placement adapts instruction (for example, working one-on-one with the student, creating a communications book, giving the student extra time to complete work, allowing the student to work in isolated areas of the classroom, adapting tests to allow the student to take them orally), these factors weigh in favor of the appropriateness of the parent’s unilateral placement. ( Frank G. , 459 F.3d at 365-66). The Student received multiple adaptations in order to help him succeed, such as individualized lesson plans, small group lessons, teaching strategies tailored to Student’s with language disorders, executive functioning disorders, or self-esteem issues, accessible readings, modified and clarified directions for assignments, recordings, when necessary, to replace or supplement readings, along with the supports tailored specifically to the Student as part of the Private School’s “Quest” program. (Ex. M, at ¶ 32). Because of these aspects of the program that are tailored to the student’s individual educational needs, I accordingly find that this factor also weighs in favor of the placement’s appropriateness.
Finally, the Private School is appropriate because the Student is making progress. Significant educational progress can be a factor weighing in favor of the appropriateness of the parent’s unilateral placement. ( Frank G. , 459 F.3d at 365 citing Knable , 238 F.3d at 768). While a student’s progress at the private placement is not by itself sufficient to determine whether a placement is appropriate, that progress is a relevant factor in assessing the appropriateness of the placement. ( Weaver v. Millbrook Cent. Sch. Dist. , 812 F. Supp. 2d 514, 523 [S.D.N.Y. 2011]). The Director of the Quest program at the Private School testified that the Private School “provides [the Student] with the necessary structure and support to enable him to make progress.” (Ex. M, at ¶ 40). This is broadly corroborated by the Student’s progress reports. ( See , e.g. , Ex. K). Accordingly, the Student’s uncontroverted progress suggests that the Private School is appropriate to meet the Student’s needs.
I find that the weight of the evidence establishes that the Private School addressed Student’s individual special education needs, and that the instruction offered there was “reasonably calculated to enable the child to receive educational benefits.” ( Frank G. , 459 F.3d at 364). As a result of the above, I find that Parent has satisfied her burden in proving that the Private School offered an educational program that met the Student’s needs under Prong II of the Burlington/Carter standard.
C. Prong III
Under the third and final prong of the Burlington/Carter test, courts consider “equitable factors” relevant to an order of tuition. ( Gagliardo , 489 F.3d at 112). “[A] major consideration in deciding whether the third factor is satisfied is whether the parents have cooperated with the [Department] throughout the process to ensure their child receive[s] a FAPE.” ( Bettinger v. New York City Bd. Of Educ. , 2007 WL 4208560, at *6 [S.D.N.Y. Nov. 20, 2007]). Specifically, equitable considerations include the parents’ participation in IEP meetings, visits to the proposed school placements, and notification of their unilateral placement decision to the DOE. ( See D.A. v. New York City Dep’t of Educ. , 769 F. Supp. 2d 403, 419-20 [S.D.N.Y. 2011]).
In this case, the Parent cooperated with the District and is entitled to full reimbursement. First, the Parent participated in the IEP meeting dated 3/7/2023. (Ex. 1; M.H. v. N.Y.C. Dep’t of Educ. , 685 F.3d 217, 254 [2d Cir. 2012] [holding that when a parent attends the IEP meeting, this is one fact among others that weighs in favor of the parent’s request for a tuition award under Prong III of the Burlington/Carter test]). Additionally, on 8/15/2023, the Parent provided the necessary ten day notice of his concerns with the District’s offer of FAPE for the Student for the 2023/24 school year and his intent to unilaterally place the Student in the Private School absent a satisfactory placement. (34 C.F.R. § 300.148[d][1][ii]; Exs. B, C).
I find no issue with the reasonableness of the tuition amount. “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.” ( Florence Cnty. Sch. Dist. Four v. Carter , 510 U.S. 7, 16, 114 S. Ct. 361 [1993]; see also J.S. v. Scarsdale Union Free Sch. Dist. , 826 F.Supp.2d 635, 671 [S.D.N.Y. 2011] [stating that “this Court has broad discretion to consider the range of all relevant facts in determining whether and to what extent awarding relief is equitable.”]). The tuition at the Private School for the 10-month program is $90,060 for the 2023/24 School year, which includes the base tuition and all related services. (Ex. L, at ¶ 13). I hold that this tuition is reasonable in light of the small class sizes, the well-trained teachers, the highly specialized nature of the program, and the sheer number of separate services the Student requires to make educational progress. ( See generally , Exs. H-M).
D. The Student’s Claim for IEEs
Finally, the Student seeks reimbursement for the neuropsychological evaluation the Parent obtained on behalf of the Student. For the reasons that follow, I find that the Parent is entitled to reimbursement based, in part, upon my discretionary authority pursuant to 8 NYCRR § 200.5[g][2].
The IDEA and State and federal regulations guarantee parents the right to obtain an 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]). 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]). 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 with which the parent disagrees" (34 CFR 300.502[b][5]; 8 NYCRR 200.5[g][1]).
It is within an IHO's authority to order an IEE at public expense as part of an impartial hearing (34 CFR 300.502[d]; 8 NYCRR 200.5[g][2]; [j][3][viii]; Luo v. Roberts , 2016 WL 6831122, at *7 [E.D. Pa. Oct. 27, 2016] [noting that an IHO "is permitted, and in some cases required, to order an [IEE] at public expense"], on reconsideration in part, Luo v. Owen J. Roberts Sch. Dist. , 2016 WL 6962547 [E.D. Pa. Nov. 28, 2016], aff'd , 2018 WL 2944340 [3d Cir. June 11, 2018]; Lyons v. Lower Merrion Sch. Dist. , 2010 WL 8913276, at *3 [E.D. Pa. Dec. 14, 2010] [noting that the regulation "allows a hearing officer to order an IEE 'as part of' a larger process"]; see also S. Kingstown Sch. Comm. v. Joanna S. , 2014 WL 197859, at *9 n.9 [D.R.I. Jan. 14, 2014] [acknowledging opinion that the regulation empowers hearing officers to solicit independent expert opinions but disagreeing that the regulation gives an IHO "the inherent power to make up remedies out of whole cloth"], aff'd , 773 F.3d 344 [1st Cir. 2014]; M.Z. ex rel. D.Z. v. Bethlehem Area Sch. Dist. , 521 F. App'x 74, 77 [3d Cir. 2013] [affirming district court's decision that the Hearing Officer had committed legal error [pursuant to 34 CFR § 300.502] when she declined to order a publicly-funded independent education evaluation despite her conclusion that the School District's report was inappropriate]; Lyons v. Lower Merrion Sch. Dist. , No. 09-5576, 2010 WL 8913276, at *3 [E.D. Pa. Dec. 14, 2010] [recognizing that 34 C.F.R. § 300.502[d] "allows a hearing officer to order an IEE 'as part of' a larger process"]; S. Kingstown Sch. Committee v. Joanna S. , No. 13-127, 2014 WL 197859, at *9 [D.R.I. Jan. 14, 2014] [noting that a hearing officer can order an independent evaluation if the evidence establishes a deficient evaluation with which the parent disagrees], aff'd 773 F.3d 344 [1st Cir. 2014]; Manchester-Essez Reg'l Sch. Dist. Comm'n v. Bureau of Special Ed. Appeals , 490 F. Supp. 2d 49, 54 [D. Mass. 2007) (noting that a Hearing Officer is permitted to order additional evaluations by the school district at public expense when necessary]).
Further, a district must ensure that a student is appropriately assessed in all areas related to the suspected disability, including, where appropriate, social and emotional status (20 U.S.C. § 1414[b][3][B]; 34 CFR 300.304[c][4]; 8 NYCRR 200.4[b][6][vii]). 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]).
In the instant case, the Parent has timely disagreed with the District’s evaluations (or here, the failure to evaluate) the Student. (Ex. A). The Parent’s DPC details the clear disagreement with the District’s then-current evaluation cycle, in which there were no new evaluations conducted. (Ex. A). This is more than specific enough to put the district on notice that Parent has disagreed with the evaluation the District has conducted (which consisted of no new assessments), and triggered the District’s responsibility to either 1) file a DPC in order to set forth that its evaluation was appropriate, or 2) without undue delay, provide the evaluations at public expense.
Because the District has taken neither of the above prescribed courses of action, I am accordingly utilizing the authority vested in me by applicable state regulations to grant reimbursement for the requested evaluations.
The Student is entitled to reimbursement for this evaluation. Here, despite the Student being due, ostensibly, for a triennial reevaluation, the District conducted no evaluations of its own, even though 1) the IEP recognized the Student as one with a learning disability, and 2) the Student had no fewer than six diagnoses. (Ex. 1, at 1, 6). I find the District’s failure to evaluate the Student and essentially leave the duties of follow-up evaluation to the Parent to be a procedural violation of the IDEA. Accordingly, the Student is entitled to reimbursement for a neuropsychological evaluation.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, it is hereby ordered:
1. Within 35 days of the date of this Order, the District shall fund the balance of the Student’s tuition to the Private School still outstanding for the 2023/24 school year, and reimburse the Parent for the amounts already paid towards the same, for a total cost not to exceed $90,060. The DOE shall not require any documentation that is not already in the hearing record to issue payment to the Parent or the Private School.
2. Within 35 days of the date of this Order, and upon presentation to the District of receipts or invoices showing the total cost, the District shall fund the cost of the Student’s neuropsychological evaluation.
SO ORDERED.
DATED: 8/19/2024
Impartial Hearing Officer
Paul DeSena
NOTICE OF RIGHT TO APPEAL
Within 40 days of the date of this decision, the parent and/or the Public-School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.
If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.
An appealing party’s request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.
APPENDIX A – REDACTION IDENTIFICATION PAGE
Term Used In FOFDInformation
Student
Parent/Guardian
Parent Attorney/Representative
District Attorney/Representative
Private School
District
Director of the Quest Program
APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD
PARENT EXHIBITS
| Exhibit | Document | Date | Pages |
| A. | DUE PROCESS COMPLAINT | 1/2/2024 | 9 |
| B. | TEN DAY NOTICE | 8/15/2023 | 2 |
| C. | TEN DAY NOTICE POD | 8/16/2023 | 1 |
| D. | PSYCHOEDUCATIONAL EVALUATION | 2/27/2023 | 17 |
| E. | EMAIL EXCHANGE BETWEEN PARENT AND | 7/27/2023- 7/28/2023 | 2 |
| F. | FINANCIAL AFFIDAVIT | 9/5/2023 | 1 |
| G. | PROOF OF PAYMENT AND FAMILY TUITION STATEMENT | 2/2023 TO 3/12/2024 | 8 |
| H. | CONTRACT | 2/6/2023 | 5 |
| I. | SCHOOL SCHEDULE | 2023-2024 | 1 |
| J. | COURSE DESCRIPTIONS | 2023-2024 | 2 |
| K. | REPORT CARD AND REPORT | 2023-2024 | 30 |
| L. | AFFIDAVIT OF | 6/21/2024 | 3 |
| M. | AFFIDAVIT OF | UNDATED | 9 |
DOE EXHIBITS
| Exhibit | Document | Date | Pages |
| 1. | Individualized Education Plan | 3/7/23 | 28 |
| 2. | Prior Written Notice | 4/28/23 | 3 |
| 3. | School Location Letter | 4/28/23 | 1 |
| 4. | 2023-2024 SESIS Log | Undated | 1 |
| 5. | - Trimester 1 Report Card | 12/9/22 | 7 |
| 6. | 2022-2023 Skills Report | undated | 6 |
IHO EXHIBITS
| Exhibit | Document | Date | Pages |
| I. | N/A | N/A | N/A |
Footnotes
[1] A detailed list of the admitted exhibits is attached as Appendix B, “Documentation Entered Into the Record,” to this decision.