STATE OF NEW YORK
OFFICE OF STATE REVIEW
25-183
Application of a STUDENT WITH A DISABILITY, by his parents, for review of a determination of a hearing officer relating to the provision of educational services by the New York City Department of Education
Appearances:
Mayerson & Associates, attorneys for petitioners, by Gary S. Mayerson, Esq.
Liz Vladeck, General Counsel, attorneys for respondent, by Emily A. McNamara, Esq.
I. Introduction
This proceeding arises under the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) and Article 89 of the New York State Education Law. Petitioners (the parents) appeal from a decision of an impartial hearing officer (IHO) which denied their request for funding for their son's home and community-based services consisting of applied behavior analysis (ABA), speech-language therapy, and occupational therapy (OT) for the 2024-25 school year. The district cross-appeals. The appeal must be sustained in part. The cross-appeal must be dismissed.
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 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, cross-examine, 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]). 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. Facts and Procedural History
The student in this matter has been the subject of a prior State-level administrative appeal relating to the 2023-24 school year (see Application of a Student with a Disability, Appeal No. 24-011). Accordingly, the parties' familiarity with this matter is presumed and, therefore, the facts and procedural history of the case will not be recited here in detail.
On January 17, 2023, the CSE convened, found the student eligible for special education as a student with autism, and developed an IEP with a projected implementation date of March 3, 2023 (Dist. Ex. 1 at pp. 1, 51). The IEP indicated the student had a history of developmental delays as well as difficulties related to cognition, language/communication, social pragmatics, self-regulation, attention, and adaptive skills (id. at p. 6). As a result, the January 2023 CSE recommended the student attend a 12-month program in a specialized school consisting of an 8:1+1 special class and three periods per week of adapted physical education (id. at p. 41). In addition, the January 2023 CSE recommended the student receive the following related services: one 30-minute session per week of individual counseling services in the provider's office; two 30-minute sessions per week of individual occupational therapy (OT) in the provider's office; one 30-minute session per week of individual OT in the special education classroom; two 30-minute sessions per week of individual physical therapy (PT) in the provider's office; one 30-minute session per week of PT in a group of two in the special education classroom; one 30-minute session per week of PT in a group of two in the provider's office; and three 30-minute sessions per week of individual speech-language therapy in the provider's office (id. at p. 42). The January 2023CSE also recommended the student's parents receive one 60-minute session per month of parent counseling and training in a group (id.).
On April 9, 2024, the parents sent an email to the district indicating the student's IEP "expired" on January 17, 2024, and the CSE had not convened to develop a new IEP (Parent Ex. C at p. 2). The parents noted that it had been over three years since the student was evaluated or observed by the CSE and requested the district evaluate the student in preparation for a future CSE meeting (id.). The parents also requested that the district provide funding for an updated independent neuropsychological evaluation (id.). The parents sent a follow-up email to the district on April 30, 2024, stating a CSE meeting had not been held yet (id. at p. 1).
On May 1, 2024, the parents entered into an enrollment contract with The Titus School (Titus) for the student's attendance during the 2024-25 12-month school year (see Parent Ex. F). The contract indicated that the base tuition costs for the 2024-25 school year included up to four separate related/mental health services, each to be provided three times per week for 30-minutes at a 1:1 ratio and two home visits (id. at p. 1). In addition to the student's program at Titus, the parents arranged for the student to receive 10-hours per week of private after-school 1:1 instruction and ABA therapy; up to two 60-minute sessions per week of private after-school 1:1 speech-language therapy; and up to two 60-minute sessions per week of private after-school 1:1 OT (Parent Exs. W ¶¶ 8, 16; X ¶ 7; Y ¶6; AA ¶¶ 30-31).
Between February 23, 2024 and May 22, 2024, the student underwent a private independent neuropsychological evaluation (Parent Ex. CC).
On June 14, 2024, the parents sent the district a letter stating their intent to continue the student's enrollment at Titus for the 2024-25 school year (Parent Ex. B). The parents noted that they had previously written to the district regarding the lack of a CSE meeting, updated IEP for the student, and updated evaluations of the student; they also noted that they had not received a timely program or placement for the student (id.). The parents asserted they remained open to discussing and considering all appropriate programs and placements with the district but in an absence of an appropriate placement they would be seeking funding for the following expenses: tuition and costs at Titus; up to 10-hours per week of after-school ABA therapy; up to two hours per week of after-school speech-language therapy; one hour per week of after-school PT; one day per week of after-school social skills group; up to two hours per week of after-school OT; up to two hours per week of parent training and counseling; up to two hours per week of after-school ABA supervision; monthly ABA meetings (one hour per therapist); monthly interdisciplinary team meetings (one hour per service provider); funding for an updated neuropsychological examination; and transportation to and from Titus (id.).
A. Due Process Complaint Notice
In a due process complaint notice dated July 1, 2024, the parents alleged that the district denied the student a free appropriate public education (FAPE) for the 2024-25 school year (Parent Ex. A).[1] The parents alleged that the district failed to convene the CSE, develop an IEP, and recommend a timely school placement for the student (id. at p. 1). The parents raised several issues in the due process complaint notice regarding the lack of an IEP for the student for the 2024-25 school year, including but not limited to, the district's: failure to develop a functional behavior assessment (FBA) and behavior intervention plan (BIP); failure to develop an IEP tailored to the student's individual and unique needs; failure to conduct evaluations or assessments of the student; failure to reimburse or otherwise fund the private independent evaluations obtained by the parents; failure to conduct a triennial evaluation; failure to meaningfully include the parents in the IEP development and placement selection process; failure to adequately consider the student's need for consistency in programming given his transition and generalization deficits; failure to offer individualized parent counseling and training; failure to recommend intensive 1:1 teaching and instruction; failure to offer adequate levels and frequencies of related services; failure to recommend an extended school day; failure to give meaningful consideration to the student's need for assistive technology; failure to develop a plan that adequately addressed the student's sensory needs; failure to develop appropriate and measurable annual goals; and failure to ensure the parents had a meaningful opportunity to participate in the CSE process (id. at pp. 3-8).
The parents also alleged that the placement, program and interventions they secured for the student were appropriate and reasonably calculated to provide meaningful educational benefits, and that equitable considerations did not preclude an award for reimbursement or prospective funding (Parent Ex. A at p. 2). The parents also invoked the student's right to pendency, based on an unappealed November 16, 2023 IHO decision (id.). According to the due process complaint notice, the student's pendency services consisted of 12-month programming at Titus; up to 10 hours per week of home and community-based ABA services and up to two hours per week of ABA supervision; up to two hours per week of parent training; up to two hours per week of additional speech-language therapy; up to two hours per week of home/community-based and gym-based OT; social skills group once per week; monthly ABA meetings (one hour per therapist); monthly interdisciplinary team meetings (one hour per service provider); and transportation costs (id.).[2]
As relief, the parents requested reimbursement and/or funding for tuition and costs at Titus, up to 10 hours per week of after-school ABA services, up to two hours per week of after-school speech-language therapy, one hour per week of after-school PT, one day per week of after-school social skills group, up to two hours per week of after-school OT, up to two hours per week of parent counseling and training, up to two hours per week of after-school ABA supervision, monthly ABA meetings (one hour per therapist), monthly interdisciplinary team meetings (one hour per service provider), an updated neuropsychological examination, and transportation costs (Parent Ex. A at pp. 8-9).
The district submitted a due process response on September 18, 2024 (Due Process Response).
B. Impartial Hearing Officer Decision
After a prehearing conference on August 6, 2024, an impartial hearing convened before an IHO from the Office of Administrative Trials and Hearings (OATH) on September 24, 2024 and concluded on December 3, 2024, after three days of proceedings (Tr. pp. 1-162). During the district's opening statement, it conceded that it failed to provide the student a FAPE for the 2024-25 school year (Tr. p. 28; IHO Decision at pp. 2, 3, 6).
In a decision dated February 19, 2025, the IHO found that the district failed to provide the student with a FAPE for the 2024-25 school year (IHO Decision at p. 6). Next the IHO addressed the parents' unilateral placement and found that the parents presented sufficient evidence to meet their burden of demonstrating that Titus was appropriate to meet the student's needs, noting that the student received ABA instruction throughout the day in a small classroom setting, with individualized attention from a special education teacher and four behavioral specialists (id.). However, the IHO further found that the parents had not provided persuasive and credible evidence to suggest that the student required additional after-school, or extended day services to attain an educational benefit (id.). The IHO stated that "[t]he conclusory statements that the [s]tudent require[d] both a combination of [Titus] and the after school services [wa]s not supported by any factual discussion of why th[e s]tudent would not attain an educational benefit from [Titus] instruction alone" (id. at pp. 6-7). Turning to equitable considerations, the IHO found that there were "no equitable bars to reimbursement for" the student's tuition costs at Titus (id. at p. 7). The IHO next addressed the parents' request for an independent educational evaluation (IEE), finding that the parents did not allege that the district failed to evaluate the student and that it "was not an issue certified for hearing" (id.). The IHO further found that even if the issue was properly before her, an alleged failure to evaluate the student was a procedural violation that did not rise to the level of a denial of a FAPE (id.). Specifically, the IHO determined that the parents requested an evaluation and that the district failed to act, however, the student's right to a FAPE was not impeded because there was no evidence that the CSE lacked sufficient evaluative information (id.). The IHO also determined that the parents never shared their privately obtained neuropsychological evaluation with the CSE (id.). The IHO further found that although the parents "might want an updated evaluation, there [wa]s insufficient information in the record to suggest that the [p]arent[s] w[ere] entitled to one merely because the [district] failed to evaluate" and that an IEE was not necessary to complete the hearing record or provide additional evaluative information for purposes of the impartial hearing (id. at pp. 7-8). Based on her findings, the IHO awarded the parents direct funding for the cost of the student's tuition at Titus for the 2024-25 school year (id. at p. 8). The IHO directed the district to continue to provide special transportation services for the student to and from Titus (id.). The IHO further denied the parents' "request for additional ABA, [speech-language therapy], OT, interdisciplinary, or other team professional meetings" and "request for reimbursement for an IEE" (id.).
IV. Appeal for State-Level Review
The parents appeal and argue that the IHO erred in denying the parents' requests for reimbursement of the costs of the student's home and community-based ABA, speech-language therapy and OT services, and in denying reimbursement for a privately obtained May 2024 neuropsychological evaluation.[3] As relief, the parents seek reimbursement for the costs of the student's after-school services and for the cost of the neuropsychological evaluation and report.
In an answer and cross-appeal, the district argues that the IHO ordered sufficient relief through direct tuition reimbursement to Titus, and correctly determined that the student's after-school services were not appropriate. As a cross-appeal, the district argues that two of the parents' proposed exhibits should not be considered as additional evidence, and that the parents' due process complaint notice does not allege any disagreement with a district evaluation in this proceeding and that the parents have previously sought independent educational evaluations (IEEs) in another proceeding that is currently pending. As a result, the district asserts that any request for an IEE in this matter is barred by the doctrine of res judicata.[4] In addition, the district argues that to the extent the parents seek reimbursement for the cost of the private neuropsychological evaluation as equitable relief for a denial of a FAPE to the student, it should be denied on the merits and further the claim is also barred by the doctrine of res judicata.[5]
In an answer to the district's cross-appeal, the parents assert that the due process complaint notice challenged the district's continual failure to evaluate the student and do not seek an IEE. The parents contend that they have sought and continue to seek reimbursement as equitable relief for a denial of a FAPE to the student.
V. Applicable Standards
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 generallyForest 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. 386, 399 [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., 580 U.S. at 404). 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]). 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., 580 U.S. at 403 [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]).[6]
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)
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).
VI. Discussion
A. Scope of Review
Citing the Rowley standard, the Supreme Court has explained that "when a public school system has defaulted on its obligations under the Act, a private school placement is 'proper under the Act' if the education provided by the private school is 'reasonably calculated to enable the child to receive educational benefits'" (Carter, 510 U.S. at 11; see Rowley, 458 U.S. at 203-04; Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 [2d Cir. 2006]; see also 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"]). The Second Circuit has held that courts assessing the propriety of a unilateral placement must consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs (Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65).
As noted above, the IHO determined that Titus was an appropriate unilateral placement, finding that the parents had "presented sufficient evidence to meet their burden in proving that [Titus wa]s appropriate to meet the [s]tudent's needs" and that the student was "receiving ABA instruction throughout the day, in a small classroom setting, with individualized attention from a special education teacher and 4 behavioral specialists" (IHO Decision at p. 6). The IHO then determined that the parents had "not provided persuasive and credible evidence to suggest that the [s]tudent require[d] additional after-school, or extended day services, to attain an educational benefit" (id.). The IHO further found that "[t]he conclusory statements that the [s]tudent require[d] both a combination of [Titus] and the after school services [wa]s not supported by any factual discussion of why th[e s]tudent would not attain an educational benefit from [Titus] instruction alone" (id. at pp. 6-7).
In her discussion of the parents' evidence, the IHO noted the unrefuted testimony of the student's Board Certified Behavior Analyst (BCBA), who stated that the student's home program targeted skills that were not only necessary to attain outside of school, but were imperative to the progress the student made within school, given the stark difference between the student's behavioral and emotional regulation at home from his regulation in school (IHO Decision at p. 4). The IHO found that the BCBA's testimony was conclusory and unpersuasive (id.). She further opined that "[w]hile it [wa]s clear the [s]tudent [wa]s attain[ing] educational benefits from the additional ABA services, it [wa]s unclear why the all-day ABA instruction the [s]tudent [wa]s receiving in-school [wa]s insufficient to address the [s]tudent's needs" (id.).[7] Turning to the student's speech-language therapy and OT, the IHO reviewed the unrefuted testimony of those providers and noted that the speech-language pathologist testified that the student needed additional speech-language therapy after school to provide him with the opportunity to reinforce the targeted skills he was learning in school while utilizing self-motivating tasks so that he was more available to learn and maintain new skills, and make meaningful progress in the classroom (id. at pp. 4-5). The IHO then considered the unrefuted testimony of the student's OT provider, noting that the OT provider testified that the student required consistent OT services to support his self-help, motor planning, and sensory integration needs, with school-based sessions focusing on community skills and handwriting (id. at p. 5). The IHO further noted that the OT provider indicated that the student required collaboration and additional outside practice to increase his independence in the school environment, at home, and in the community (id.). The IHO found that the parents' evidence in support of the argument that the student "'could not make meaningful educational, social[/]emotional, and developmental progress without his current school placement and program without his after[-]school ABA therapy, OT, and speech services' … [was] conclusory and not supported by the sum of the evidence" (id.). The IHO stated that "[t]o the contrary, the evidence suggest[ed] that the [s]tudent [wa]s attaining educational benefits from [Titus] … during the school day" and that "the evidence [wa]s void of why [Titus] alone, [wa]s insufficient to meet th[e] … [s]tudent's needs" (id.). In addition, the IHO found that "[t]here [wa]s no specific explanation as to why any benefit attained by [Titus] would be trivial or why the program offered by [Titus] would lead to regression and not progress" (id.). Lastly, the IHO found that the evidence did not support the parents' request for interdisciplinary meetings between the providers, stating that "[w]hile the [p]arent[s] may prefer these services, there [wa]s no evidence to suggest they [we]re necessary for the [s]tudent to attain an educational benefit" (id.).
The legal standard for determining the appropriateness of a unilateral placement pursuant to a Burlington/Carter analysis is whether the unilateral placement provided instruction specially designed to meet the unique needs of the student. Additionally, the program provided by the parents' unilateral placement must be reasonably calculated to enable the student to receive educational benefit. Here, the IHO articulated the correct legal standards in her decision; however, upon application of those standards her analysis of the appropriateness of the parents' unilateral placement appeared to hold the parents' home and community-based providers to the same legal standards a district must follow in the provision of a FAPE, and further improperly focused on whether or not the student required the home and community-based services to receive an educational benefit, rather than considering whether the parents' unilateral placement—which consisted of both enrollment at Titus along with the home and community-based services—constituted instruction specially designed to address the student's needs when viewed in light of the totality of the circumstances. The IHO's analysis of the testimony of the student's providers also indicates that she viewed the parents' home and community-based services as exceeding the requirements of a FAPE.
While the IHO rightly addressed the persuasiveness of some of the evidence presented by the parents, the question of excessiveness of services is an equitable consideration, and the Second Circuit Court of Appeals has held it is error for an IHO to apply the Burlington/Carter test by weighing equitable considerations in the IHO's analysis of the appropriateness of the unilateral placement (A.P. v. New York City Dep't of Educ., 2024 WL 763386, at *2 [2d Cir. Feb. 26, 2024] [explaining that the first two prongs of the test generally constitute a binary inquiry that determines whether or not relief is warranted and holding that the IHO should have determined only whether the unilateral placement was appropriate or not rather than holding that the parent was entitled to recover 3/8ths of the tuition costs because three hours of instruction were provided in an eight hours day]).
While the IHO's analysis of the parents' request for funding of the student's home and community-based services was flawed, neither party has appealed from the IHO's determinations that the district failed to meet its burden to prove that it offered the student a FAPE for the 2024-25 school year, that Titus was an appropriate unilateral placement for the student for the 2024-25 school year or the IHO's award of reimbursement for the cost of the student's tuition at Titus. Accordingly, these findings have become final and binding on the parties and will not be reviewed on appeal (34 CFR 300.514[a]; 8 NYCRR 200.5[j][5][v]; see M.Z. v. New York City Dep't of Educ., 2013 WL 1314992, at *6-*7, *10 [S.D.N.Y. Mar. 21, 2013]).
Typically, the next inquiries would revolve around the appropriateness of the parents' home and community-based services and equitable considerations, however, at this point in the proceeding those issues have been rendered moot, as discussed below.
B. Mootness
A dispute between parties must at all stages be "real and live," and not "academic," or it risks becoming moot (Lillbask v. State of Conn. Dep't of Educ., 397 F.3d 77, 84 [2d Cir. 2005]; see Toth v. City of New York Dep't of Educ., 720 Fed. App'x 48, 51 [2d Cir. Jan. 2, 2018]; F.O. v. New York City Dep't of Educ., 899 F. Supp. 2d 251, 254 [S.D.N.Y. 2012]; Patskin v. Bd. of Educ. of Webster Cent. Sch. Dist., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]; Student X v. New York City Dep't of Educ., 2008 WL 4890440, at *12 [E.D.N.Y. Oct. 30, 2008]; J.N. v. Depew Union Free Sch. Dist., 2008 WL 4501940, at *3-*4 [W.D.N.Y. Sept. 30, 2008]; see also Coleman v. Daines, 19 N.Y.3d 1087, 1090 [2012]; Hearst Corp. v. Clyne, 50 N.Y.2d 707, 714 [1980]). In general, cases dealing with issues such as desired changes in IEPs, specific placements, and implementation disputes may become moot at the end of the school year because no meaningful relief can be granted (see, e.g., V.M. v. N. Colonie Cent. Sch. Dist., 954 F. Supp. 2d 102, 119-21 [N.D.N.Y. 2013]; M.S. v. New York City Dep't of Educ., 734 F. Supp. 2d 271, 280-81 [E.D.N.Y. 2010]; Patskin, 583 F. Supp. 2d at 428-29; J.N., 2008 WL 4501940, at *3-*4; but see A.A. v. Walled Lake Consol. Schs., 2017 WL 2591906, at *6-*9 [E.D. Mich. June 15, 2017] [considering the question of the "potential mootness of a claim for declaratory relief"]). Administrative decisions rendered in cases that concern such issues that arise out of school years since expired may no longer appropriately address the current needs of the student (see Daniel R.R. v. El Paso Indep. Sch. Dist., 874 F.2d 1036, 1040 [5th Cir. 1989]; Application of a Child with a Disability, Appeal No. 07-139; Application of the Bd. of Educ., Appeal No. 07-028; Application of a Child with a Disability, Appeal No. 06-070; Application of a Child with a Disability, Appeal No. 04-007).
Here, the parents sought funding for the student's unilateral placement, which consisted of funding for the student's tuition at Titus and for the cost of the student's home and community-based services for the 2024-25 school year (Parent Ex. A at pp. 8-9). Specifically, the parent's requested tuition and up to 10 hours per week of after-school ABA services; up to two hours per week of after-school speech-language therapy; one hour per week of after-school PT; one day per week of after-school social skills group; up to two hours per week of after-school OT; up to two hours per week of parent counseling and training; up to two hours per week of after-school ABA supervision; monthly ABA meetings (one hour per therapist); monthly interdisciplinary team meetings (one hour per service provider) and transportation costs for the 2024-25 school year (id.).
The district was required to fund the student's stay put placement from the date of the parents' July 1, 2024 due process complaint notice through the pendency of these proceedings in accordance with the pendency implementation form countersigned by the district on August 6, 2024 (Pendency Implementation Form). The student's pendency services were based on an unappealed November 16, 2023 prior IHO's decision. According to the pendency implementation form, the student was entitled to 12-month services consisting of enrollment at Titus, 10 hours per week of ABA services, two hours per week of ABA supervision, two hours per week of OT, one hour per week of PT, two hours per week of speech-language therapy, two hours per week of parent counseling and training, one hour per service provider of monthly interdisciplinary team meeting, and transportation costs (Pendency Implementation Form; see Tr. p. 11).
While a student is entitled to remain in his or her stay-put placement during the pendency of a proceeding, this statutory protection is similar to preliminary injunctive relief to protect the student while the proceedings are pending and is distinct from the ultimate relief available to a parent through the due process proceedings (20 U.S.C. § 1415 [j]; Educ. Law §§ 4404[4]; 34 CFR 300.518[a]; 8 NYCRR 200.5[m]; see Zvi D. v. Ambach, 694 F.2d 904, 906 [2d Cir. 1982]). However, in this instance, the student received services under pendency for the entirety of the 12-month, 2024-25 school year and the parents' due process complaint notice requested the same services for both pendency and the ultimate relief as part of the hearing (see Parent Ex. A at pp. 2, 8-9). During the impartial hearing, the district representative indicated the district was not contesting pendency (Tr. p. 11). Accordingly, the parents have received all of the relief sought in this proceeding except as it relates to their request for reimbursement of a private neuropsychological evaluation (see Parent Ex. A at p. 9).
Additionally, a claim may not be moot despite the end of a school year for which the student's IEP was written, if the conduct complained of is "capable of repetition, yet evading review" (see Honig v. Doe, 484 U.S. 305, 318-23 [1988]; Toth, 720 Fed. App'x at 51; Lillbask, 397 F.3d at 84-85; Daniel R.R., 874 F.2d at 1040). The exception applies only in limited situations (City of Los Angeles v. Lyons, 461 U.S. 95, 109 [1983]), and is severely circumscribed (Knaust v. City of Kingston, 157 F.3d 86, 88 [2d Cir. 1998]). It must be apparent that "the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration" (Murphy v. Hunt, 455 U.S. 478, 482 [1982]; see Knaust, 157 F.3d at 88). Many IEP disputes escape a finding of mootness due to the short duration of the school year facing the comparatively long litigation process (see Lillbask, 397 F.3d at 85). Controversies are "capable of repetition" when there is a reasonable expectation that the same complaining party would be subjected to the same action again (Weinstein v. Bradford, 423 U.S. 147, 149 [1975]; Toth, 720 Fed. App'x at 51; see Hearst Corp., 50 N.Y.2d at 714-15). To create a reasonable expectation of recurrence, repetition must be more than theoretically possible (Murphy, 455 U.S. at 482; Russman v. Bd. of Educ. of Enlarged City Sch. Dist. of City of Watervliet, 260 F.3d 114, 120 [2d Cir. 2001]). Mere speculation that the parties will be involved in a dispute over the same issue does not rise to the level of a reasonable expectation or demonstrated probability of recurrence (Russman, 260 F.3d at 120; but see A.A., 2017 WL 2591906, at *7-*9 [finding that the controversy as to "whether and to what extent the [s]tudent can be mainstreamed" constituted a "recurring controversy [that] will evade review during the effective period of each IEP for the [s]tudent"]; see also Toth, 720 Fed. App'x at 51 [finding that a new IEP that did not include the service requested by the parent established that the parent's concern that the prior IEP would be repeated was not speculative and the "capable of repetition, yet evading review" exception to the mootness doctrine applied]).
Some courts have taken a dim view of dismissing a Burlington/Carter reimbursement case as moot because all of the relief has been obtained through pendency (New York City Dep't of Educ. v. S.A., 2012 WL 6028938, at *2 [S.D.N.Y. Dec. 4, 2012]; New York City Dep't of Educ. v. V.S., 2011 WL 3273922, at *9-*10 [E.D.N.Y. Jul. 29, 2011]), while others have found it an acceptable manner of addressing matters in which the relief has already been realized through pendency (see V.M., 954 F. Supp. 2d at 119-20 [explaining that claims seeking changes to the student's IEP/educational programing for school years that have since expired are moot, especially if updated evaluations may alter the scrutiny of the issue]; Thomas W. v. Hawaii, 2012 WL 6651884, at *1, *3 [D. Haw. Dec. 20, 2012] [holding that once a requested tuition reimbursement remedy has been funded pursuant to pendency, substantive issues regarding reimbursement become moot, without discussing the exception to the mootness doctrine]; F.O., 899 F. Supp. 2d at 254-55; M.R. v. S. Orangetown Cent. Sch. Dist., 2011 WL 6307563, at *9 [S.D.N.Y. Dec. 16, 2011]; M.S., 734 F. Supp. 2d at 280-81 [finding that the exception to the mootness doctrine did not apply to a tuition reimbursement case and that the issue of reimbursement for a particular school year "is not capable of repetition because each year a new determination is made based on [the student]'s continuing development, requiring a new assessment under the IDEA"]).
Initially, review of the district court decision in V.S., shows that matter was determined not to be moot because a decision as to the adequacy of the proposed IEP in that matter would have supplanted the student's then-current pendency placement in that matter and established a new educational placement for the student (V.S., 2011 WL 3273922, at *10). However, in this matter, neither party has appealed from the IHO's determination on the merits that the district failed to offer the student a FAPE for the 2024-25 school year or that Titus was appropriate to address the student's needs (see IHO Decision at p. 6). Accordingly, there can be no determination on the merits to the contrary in this proceeding and there is no further relief that could be addressed in this matter that is ongoing and further remediable.
Additionally, the capable of repetition yet evading review exception to mootness would not apply because the conduct complained of—the district's failure to offer the student a FAPE—is no longer at issue in this proceeding. Rather, the parties' dispute centers around the particular home-based services the parents obtained as self-help to remedy the district's denial of a FAPE to the student. As the FAPE determination has already been addressed and the only issues in this matter relate to the appropriateness of unilaterally obtained services and the weighing of equitable considerations, any parental concern that the district would continue to recommend the same program is not addressable at this level of the proceeding and cannot be used to justify a finding that the matter is "capable of repetition, yet evading review." While the Second Circuit has noted that "IEP disputes likely satisfy the first factor for avoiding mootness dismissals" because "judicial review of an IEP is 'ponderous'" (Lillbask, 397 F.3d at 87), this does not seem to be a concern in this matter as the IEP dispute has been removed. Without an IEP dispute, the question of the appropriateness of unilaterally obtained services could be made in a much shorter time frame. More pertinently, however, because there is no longer a dispute as to the student's educational programming, there is no district action "capable of repetition, yet evading review." As such, the issue of whether a unilateral placement is appropriate, unlike FAPE, does not fit into the mootness exception as it is not capable of repetition yet evading review.
Based on the foregoing, the questions of whether the parents' home and community-based services were appropriate and whether equitable considerations favor relief for the parents are moot as there is no further relief that may be granted. The parents' request for reimbursement for a privately obtained neuropsychological evaluation and report will be addressed below.
C. IEE
The parents assert that the IHO erred in denying their reimbursement request for a privately obtained May 2024 neuropsychological evaluation. The parents argue that the lack of disagreement with a district evaluation should not bar reimbursement because the parents repeatedly alleged that the district had failed to conduct any evaluations, including a triennial evaluation of the student. The parents also contend that they are not requesting an IEE, they are seeking equitable relief for the district's continual failure to evaluate the student and continual placement of the burden on the parents to provide the district with evaluative information about the student.
The district argues that the parents' request for an IEE based on its failure to conduct a triennial evaluation should be denied as both meritless and barred by the doctrine of res judicata. The district asserts that the January 2023 CSE relied on a variety of evaluative information provided by the parents, including the parents' May 2021 neuropsychological evaluation. The district further claims that at the time of the January 2023 CSE, all of the evaluations were less than three years old and thus the student was not due for a triennial evaluation. Next, the district argues that the parents did not disagree with a district evaluation and that their request was not linked to any legal claims, which the district contends is problematic because the parents previously requested an IEE based on the sufficiency and alleged outdated nature of the student's evaluations in a prior proceeding that is currently pending in federal court. With regard to the parents' claim for equitable relief, the district asserts that the request for reimbursement was raised in the prior proceeding and is barred by res judicata. The district raises additional reasons to deny the parents' request such as the parents are only entitled to one IEE at public expense each time the district conducts an evaluation with which the parents disagree, that the hearing record does not demonstrate when the student was due for a triennial evaluation, and that the parents were denied a neuropsychological evaluation at public expense (Application of a Student with a Disability, Appeal No. 24-011), proceeded to obtain the evaluation, which the November 2024 CSE duly considered.[8]
The IHO denied the parents' request for reimbursement for the May 2024 neuropsychological evaluation (IHO Decision at p. 7). The IHO found that the parents did not allege that the district failed to evaluate the student, and that, even if they had alleged a failure to evaluate, it would have been an alleged procedural violation (id.). Next the IHO noted that "[w]hile the [p]arent[s] requested an evaluation and the school district failed to act," there was no evidence to suggest that the lack of evaluative data impeded the student's right to a FAPE (id.).[9] The IHO also determined that there was insufficient information in the record to suggest that the parents were entitled to an IEE, merely because the district failed to evaluate the student and that there was no evidence to suggest that the IEE was necessary to complete the record or provide additional evaluative information for purposes of the impartial hearing (id. at pp. 7-8).
At the outset, the district's reliance on the doctrine of res judicata is misplaced in this matter. The prior proceeding involving this student concerned the 2023-24 school year, and the parents sought reimbursement for a May 2021 neuropsychological evaluation (Application of a Student with a Disability, Appeal No. 24-011; see Parent Ex. E).[10] In this matter, the parents alleged that the district had not evaluated the student despite repeated requests, that the district failed to convene a CSE and develop an IEP for the 2024-25 school year, and among the parents' request for relief was reimbursement for a May 2024 neuropsychological evaluation (Parent Exs. A at pp. 1, 3, 4, 5, 9; B at p. 1). Contrary to the district's contention, the parents' claims related to the 2024-25 school year were not required to be raised in an amended due process complaint notice challenging the 2023-24 school year (Application of a Student with a Disability, Appeal No. 24-011).[11]
Turning to the parties' arguments on appeal, the parents correctly assert that the IHO erred in finding that they did not allege that the district failed to evaluate the student (IHO Decision at p. 7). In an email dated April 9, 2024, the parents wrote to the district stating that a CSE meeting had not been scheduled and further noted that it had been "over three years" since the student was last evaluated or observed by the district (Parent Ex. C at p. 2). The parents requested that the district evaluate the student and also to provide funding for an updated independent neuropsychological evaluation (id.). On April 30, 2024, the parents sent another email to the district "following up" on the April 9, 2024 email, and reiterating that a CSE meeting had not been held (id. at p. 1). There is no indication in the hearing record that the district responded to the parents' inquiries. In a 10-day notice letter dated June 14, 2024, the parents advised the district that a CSE meeting had not been scheduled and an IEP had not been developed for the 2024-25 school year (Parent Ex. B at p. 1). In addition, the parents stated that the last CSE meeting held for the student was on January 17, 2023 (id.). The parents further advised the district that they had "previously written the [district] and CSE to request that updated evaluations and assessments be conducted for [the student], as it ha[d] been over three years since the [district] ha[d] re-evaluated or observed him" (id.). The parents also notified the district of their intention to unilaterally place the student and seek funding for the costs of the parents' unilateral placement as well as for "[f]unding for an updated [n]europsychol[o]g[i]cal [evaluation]" (id.). The parents reiterated their allegations that the district had failed to evaluate the student and reiterated their request for funding for a neuropsychological evaluation in their July 1, 2024 due process complaint notice (Parent Ex. A at pp. 1, 3, 4, 5, 9).
Although the parents argue that they are not seeking an IEE, rather they request equitable relief for the district's failure to evaluate the student, the hearing record supports a finding that the parents are entitled to an IEE.
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]).[12]
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]). The Second Circuit Court of Appeals has 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]).
However, and as relevant to this matter, 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]).
As noted above, the parents requested that the district evaluate the student and subsequently requested funding for the May 2024 neuropsychological evaluation. During the impartial hearing, the district conceded that it failed to offer the student a FAPE for the 2024-25 school year and the documentary evidence offered by the district related to the development of the January 2023 IEP, which had an implementation date of March 3, 2023 (Tr. p. 28; Dist. Exs. 1 at p. 1; 2-5). In addition, the January 2023 IEP indicated that the student's projected date of annual review was January 17, 2024 (Dist. Ex. 1 at p. 1). The January 2023 IEP and a June 22, 2023 prior written notice reflected that the evaluative information considered by the CSE consisted of a February 2022 IEP, along with evaluations and progress reports provided by the parents and the student's private providers (Dist. Exs. 1 at p. 1; 2 at pp. 2-3; see also Dist. Exs. 3-5).
The IHO's determination that the district's failure to evaluate the student was a procedural violation that did not rise to the level of a denial of a FAPE is unsupported by the hearing record, given that the district conceded that the student was denied a FAPE for the 2024-25 school year, and further undermined by the fact that the district's evidence in the hearing record had no bearing on the development of an IEP for the 2024-25 school year.
Lastly, a December 2, 2024 prior written notice offered as additional evidence reflects that a CSE convened on November 4, 2024 to develop an IEP with a projected implementation date of November 19, 2024 (Parent Ex. FF at p. 1). Review of the December 2, 2024 prior written notice indicates that the CSE did not consider any evaluative information provided by the district and based its recommendations on the evaluative information set forth in the May 22, 2024 private neuropsychological evaluation, a November 4, 2024 functional behavioral assessment, and a November 4, 2024 school progress report/outside provider report (id. at pp. 3-4). The December 2, 2024 prior written notice supports the parents' contentions that the district has continually failed to evaluate the student and that the parents provided the CSE with a copy of the May 22, 2024 neuropsychological evaluation.
Based on the foregoing, the parents notified the district of their disagreement with its failure to evaluate the student, and the district did not provide an IEE at public expense or initiate an impartial hearing. Thus, the parents are entitled to funding for the May 22, 2024 neuropsychological evaluation in the amount of $8,000 (Parent Ex. DD). Having found that the parents are entitled to an IEE at public expense, it is not necessary to address whether reimbursement for the May 22, 2024 neuropsychological evaluation was an appropriate equitable remedy for the denial of a FAPE to the student for the 2024-25 school year.
VII. Conclusion
In summary, the IHO erred in her analysis of the parents' unilateral placement by failing to consider the totality of the circumstances and failing to consider whether the student's enrollment at Titus along with home and community-based services constituted specially designed instruction to address the student's unique needs. However, any determination as to whether or not the parent's unilateral placement for the 2024-25 school year—which has concluded and has been funded by the district—was appropriate or whether equitable considerations warranted an award of full funding to the parents is unnecessary as these issues have been rendered moot. Next, I further find that the IHO erred in denying funding to the parents for their privately obtained May 22, 2024 neuropsychological evaluation as the hearing record demonstrates the parents' entitlement to an IEE at public expense.
I have considered the parties' remaining contentions and find they are unnecessary to address in light of my determinations herein.
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
THE CROSS-APPEAL IS DISMISSED.
IT IS ORDERED that the IHO's decision, dated February 19, 2025, is modified by reversing those portions which denied the parent's request for an IEE at district expense; and
IT IS FURTHER ORDERED that the district shall reimburse the parents $8,000 for the cost of the May 22, 2024 private neuropsychological assessment.
Footnotes
[1] The parents indicated in their due process complaint notice that the student had attended Manhattan Children's Center during the 2023-24 school year; however, the parent indicated in her testimony by affidavit that the student attended Titus for the past four school years (Parent Ex. AA ¶ 4).
[2] On August 6, 2024, the district agreed that the student's pendency program was based on the November 16, 2023 IHO decision and that the due process complaint notice had been filed on July 1, 2024 (Aug. 6, 2024 Pendency Implementation Form; see Tr. p. 11).
[3] The parents submitted three documents with their request for review. Generally, documentary evidence not presented at an impartial hearing may be considered in an appeal from an impartial hearing officer's decision only if such additional evidence could not have been offered at the time of the impartial hearing and the evidence is necessary in order to render a decision (see, e.g., Application of a Student with a Disability, Appeal No. 08-030; Application of the Dep't of Educ., Appeal No. 08-024; Application of a Student with a Disability, Appeal No. 08-003; Application of the Bd. of Educ., Appeal No. 06-044; Application of the Bd. of Educ., Appeal No. 06-040; Application of a Child with a Disability, Appeal No. 05-080; Application of a Child with a Disability, Appeal No. 05-068; Application of the Bd. of Educ., Appeal No. 04-068). Initially, the request for review does not include a request that the documents be considered as additional evidence. The parents cite to the documents in their request for review to support or refute specific arguments. Nevertheless, proposed exhibits DD and FF were available and could have been offered at the time of the impartial hearing. Proposed exhibit EE is an email correspondence between the IHO and the parties regarding the availability of a transcript. The transcript at issue was filed by the district as part of the certified hearing record. Notwithstanding the above, the district consents to the consideration of proposed exhibit FF and I find that the exhibit is relevant to the discussion of whether or not the parents are entitled to funding for a May 22, 2024 neuropsychological evaluation. Accordingly, proposed exhibits DD and EE are not necessary evidence to render a decision in this matter and will not be considered further. However, I will exercise my discretion and accept proposed exhibit FF as additional evidence (see Parent Ex. FF).
[4] Although styled as an answer and cross-appeal, review of the document as a whole shows that it does not contain a cross-appeal in that it does not identify any precise rulings, failures to rule, or refusals to rule of the IHO of which the district seeks review (see 8 NYCRR 279.8 [c][2]). Likewise, the parents' request for review does not contain a specific allegation that the IHO failed to consider their request for reimbursement of the cost of the neuropsychological evaluation as a form of equitable relief. However, the parties' pleadings clearly indicate that they agree that the IHO failed to rule on the parents' request for equitable relief in the form of reimbursement for a private evaluation.
[5] In support of this argument, the district cites to a proposed SRO exhibit and requests that it be considered as supplemental evidence. However, the district did not submit a proposed exhibit with its answer and cross-appeal.
[6] 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., 580 U.S. at 402).
[7] The IHO also stated that "[o]ther than it being common for students with Autism to have trouble transferring skills, there [wa]s nothing in the record to suggest that the [s]tudent would regress or that any progress seen with solely the in-school program, would be trivial" (IHO Decision at p. 4).
[8] The district's other arguments related to the parents' appeal from Application of a Student with a Disability, Appeal No. 24-011 are unavailing. Notwithstanding the district's failure to submit its proposed exhibit, the parents' complaint involved the 2023-24 school year and funding for a May 2021 neuropsychological evaluation. During the pendency of this proceeding, a decision was rendered in the parents' appeal and found that the SRO in that matter correctly denied the parents' request for funding of the May 2021 neuropsychological evaluation because the parents' request was made for the first time in their amended due process complaint notice (see R.F. v. New York City Dep't of Educ., 2025 WL 2695690, at *12 [S.D.N.Y. Sept. 22, 2025]).
[9] The IHO also found that there was no evidence to suggest that the parents provided the evaluation to the district and that the parents made assertions to the CSE to suggest that their evaluation would be provided, however, there was nothing to suggest that it was (IHO Decision at p. 7). The IHO further determined that the failure to provide updated evaluations did not necessarily deprive the student of a FAPE, as the CSE need only rely on sufficient evaluative data, which could include outdated evaluations coupled with updated progress reports and input from teachers and providers (id.). As noted above, the parties agreed to the consideration of parent exhibit FF, which is a December 2, 2024, prior written notice, which indicated that among the evaluative information considered by the November 2024 CSE was the May 2024 neuropsychological evaluation (Parent Ex. FF at p. 3). This evidence was not offered during the impartial hearing and was not available to the IHO when rendering her decision.
[10] The hearing record contains duplicative exhibits. For purposes of this decision, only parent exhibits are cited in instances where both a parent and district exhibit are identical in content. The IHO is reminded that it is her responsibility to exclude evidence that she determines to be irrelevant, immaterial, unreliable, or unduly repetitious (8 NYCRR 200.5[j][3][xii][c]).
[11] It is well-established that the doctrine of res judicata and the related doctrine of collateral estoppel apply to administrative proceedings when the agency acts in a judicial capacity (see K.C. v. Chappaqua Cent. Sch. Dist., 2017 WL 2417019, at *6 [S.D.N.Y. June 2, 2017]; K.B. v. Pearl River Union Free Sch. Dist., 2012 WL 234392, at *5 [S.D.N.Y. Jan. 13, 2012]; Schreiber v. E. Ramapo Cent. Sch. Dist., 700 F. Supp. 2d 529, 554-55 [S.D.N.Y. 2010]; Grenon v. Taconic Hills Cent. Sch. Dist., 2006 WL 3751450, at *6 [N.D.N.Y. Dec. 19. 2006]). The doctrine of res judicata (or claim preclusion) "precludes parties from relitigating issues that were or could have been raised in a prior proceeding" (K.B., 2012 WL 234392, at *4; see Perez v. Danbury Hosp., 347 F.3d 419, 426 [2d Cir. 2003]; Murphy v. Gallagher, 761 F.2d 878, 879 [2d Cir. 1985]; Grenon, 2006 WL 3751450, at *6). Res judicata applies when: (1) the prior proceeding involved an adjudication on the merits; (2) the prior proceeding involved the same parties or those in privity with the parties; and (3) the claims alleged in the subsequent action were, or could have been, raised in the prior proceeding (see K.B., 2012 WL 234392, at *4; Grenon, 2006 WL 3751450, at *6). Claims that could have been raised are described as those that "emerge from the same 'nucleus of operative fact' as any claim actually asserted" in the prior adjudication (Malcolm v. Honeoye Falls Lima Cent. Sch. Dist., 517 Fed. App'x 11, 12 [2d Cir. Apr. 1, 2013]).
[12] 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]).