STATE OF NEW YORK
OFFICE OF STATE REVIEW
25-221
Application of a STUDENT SUSPECTED OF HAVING A DISABILITY, by her parent, 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:
Liberty and Freedom Legal Group, LTD, attorneys for petitioner, by Richa Raghute, Esq.
Liz Vladeck, General Counsel, attorneys for respondent, by Abigail Hoglund-Shen, 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. Petitioner (the parent) appeals from a decision of an impartial hearing officer (IHO) which denied her request that respondent (the district) fund the costs of her daughter's tuition at the International Institute for the Brain (iBrain) for the 2023-24 school year. The district cross-appeals from that portion of the IHO's decision which found that it failed to offer an appropriate educational program to the student for a portion of the 2023-24 school year. The appeal must be dismissed. The cross-appeal must be sustained in part.
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 hearing record is sparse as to the student's educational history prior to moving to the district (see Tr. p. 220). On or around August 10 and August 11, 2023 the student, accompanied by her parent, was "presented for evaluation" at iBrain (Parent Ex. D at pp. 1, 15-16, 20, 21). In August 2023, the parent contacted welcome centers in the district to enroll and register her children to be students in the district (Parent Exs. I ¶ 6; K; L).
The student began attending iBrain on or around September 19, 2023 (Parent Exs. C at p. 1; E at p. 1). According to the student's October 2023 iBrain report and educational plan (iBrain plan), the student had received the diagnosis of "[e]ncephalitis, [b]rain injury" at one year of age, following a seizure, which led to the student's hypotonia (weakened muscle tone), developmental delays, inability to ambulate, and speech and language delays (Parent Ex. D at pp. 1, 21-22, 27). The iBrain plan further reported the student was non-verbal and had impaired communication skills (expressive, comprehensive, receptive, and pragmatic), communicated via her facial expressions, was non-ambulatory, and had severe perceptual impairment (id. at pp. 1, 21, 27). The October 2023 iBrain plan indicated that the student, who was six years old at the time, "never attended school" and that her enrollment at iBrain was his "initial experience in a classroom setting" (id. at pp. 1, 5).
On March 20, 2024, the parent signed an enrollment contract with iBrain for the student's attendance during the 2023-24 school year (Parent Ex. C at pp. 1-7). The contract indicated that the academic and related services program ran from September 19, 2023 through June 21, 2024 (id. at p. 1). In a letter to the district, dated March 25, 2024, the parent, through a law clerk from her attorney's office, asserted that the district failed to convene a CSE to develop an IEP for the student in the 2023-24 school year and requested that the "CSE convene for this purpose" (Parent Ex. B at pp. 1-2). The parent further advised that she was "willing to entertain an appropriate [district] program" or placement that could provide the required "intensive academic and related services program" that the student required, but that, at that time, she had no choice other than to enroll the student in iBrain, which, the parent described as an appropriate placement for the student, and seek public funding for the costs thereof (id. at pp. 1, 2).
In a letter to the district dated June 10, 2024, the parent, through her attorney, provided notice of her disagreement with the district's "lack of a proposed recommended program and placement" for the student for the 2024-25 school year, and advised the district that she intended to maintain the student's enrollment at iBrain and seek public funding for the costs thereof (Dist. Ex. 2 at pp. 1-2).[1] On June 14, 2024, the district received the June 10, 2024 letter from the parent and at that point initiated an evaluation of the student to determine her eligibility for special education (Tr. pp. 130-32; Dist. Exs. 1 at p. 1; 5 ¶ 10).
A. Due Process Complaint Notice
In a due process complaint notice dated June 25, 2024, the parent alleged that the district procedurally and substantively denied the student a free appropriate public education (FAPE) for the 2022-23 and 2023-24 school years as well as "all the previous years [the district was] required to provide FAPE to [the student] including throughout preschool" (Parent Ex. A at p. 1). Specifically, the parent alleged that the district failed in its child find obligations, including its responsibility to timely identify the student as a student suspected of having a disability, and failed to conduct evaluations, convene a CSE, and develop an IEP for the student (id. at pp. 1-2, 4-6). The parent further claimed that the district failed to provide her with required notices or ensure her participation in the process (id. at pp. 4-6). The parent invoked pendency, asserting that iBrain was the student's stay put placement (id. at pp. 2-3, 8). For relief, the parent requested that the district be required to pay the student's tuition at iBrain for the 2023-24 school year and fund the student's special transportation; fund an award of compensatory education "as extended eligibility equal to the years of deprivation of FAPE"; convene a CSE to "address [the student's] developmental needs"; "re-evaluate" the student and fund "independent and transition" evaluations of the student; and provide the student with assistive technology services and devices (id. at p. 8).
B. Impartial Hearing and Impartial Hearing Officer Decision
The matter was assigned to an IHO with the Office of Administrative Trials and Hearings (OATH), and a prehearing conference was held on July 22, 2024 (Tr. pp. 1-24). The parties submitted their positions on pendency (IHO Exs. I-IV). The district filed a motion to dismiss, to which the parent responded, but the district subsequently withdrew that motion (Tr. pp. 105-07; Dist. Mot. to Dismiss; Parent Opp'n to Mot. to Dismiss). The impartial hearing convened on August 13, 2024, and concluded on September 24, 2024, after three days of proceedings (Tr. pp. 25-233).
In a decision dated March 5, 2025, the IHO found that the student had not been found eligible for special education as a student with a disability when placed at iBrain and that the district did not know or have reason to know of the need to evaluate the student until the parent sent the March 25, 2024 ten-day notice (IHO Decision at pp. 6, 11-12). The IHO found that, after this date, the district failed to evaluate the student and denied the student a FAPE from March 25, 2024 through June 21, 2024 (id. at pp. 6, 12). The IHO rejected the parent's position that the district should have known about the student beginning in April 2023, finding that the parent "did not credibly testify that [the district] knew or should have known" about the student at that time, that "[t]wo general email communications in August 2023 that did not identify the Student, did not establish notice," and that it was not credible that the parent "would dispose of emails and other documentation with the [district]" that purportedly would have established her communication to the district that the student needed special education (id. at p. 11).
The IHO also found that the parent failed to meet her burden to prove that the unilateral placement at iBrain was appropriate, citing credibility issues and inconsistencies in iBrain's reports (including a progress report predating the iBrain plan), lack of specially designed instruction, and unreliable witness testimony (IHO Decision at pp. 12-13). The IHO further determined that the equitable considerations did not support the parent's requested relief, noting the "high and insufficiently supported" costs, lack of evidence regarding provider credentials or the student's attendance, and contradictions regarding the student's start date (id. at pp. 13-14). Based on these findings, the IHO denied the parent's requested relief in its entirety (id. at p. 15).
The IHO also denied the parent's request for pendency for any portion of the 2023-24 school year, finding the request moot because the due process complaint notice was filed after the 2023-24 school year ended and further holding that, even if not moot the student's "operative placement" could not be iBrain because no IEP had been previously implemented and no IHO, SRO, or court had found the placement at iBrain appropriate (IHO Decision at pp. 8-9). The IHO found that the student's stay put placement for the pendency of the proceedings was "[p]ublic school" (id. at p. 8).
IV. Appeal for State-Level Review
The parent appeals, alleging that the IHO erred in finding that the district only denied the student FAPE from March 25, 2024 through the end of the 2023-24 school year, that the parent failed to prove the appropriateness of the unilateral placement at iBrain, and that the equitable considerations did not favor granting the parent's requested relief. The parent requests reversal of the IHO's findings and an award of full direct payment for the student's iBrain tuition for the entirety of the 2023–24 school year.
In an answer with cross-appeal, the district responds to the parent's appeal and alleges that the IHO erred in finding that it denied the student a FAPE for the period of March through June 2024. The district otherwise argues that the IHO correctly found that the district did not violate its child find obligation or deny the student a FAPE for the remainder of the 2023-24 school year, that the parent failed to meet her burden to show iBrain was an appropriate placement, and that the equitable considerations did not support awarding the parent her requested relief.
In a reply and answer to the cross-appeal, the parent responds to the district's allegations.
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]).[2]
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
Before addressing the merits of the parent's appeal, a determination must be made regarding which claims are properly before me. State regulations governing practice before the Office of State Review provide that a request for review "shall clearly specify the reasons for challenging the [IHO's] decision, identify the findings, conclusions, and orders to which exceptions are taken, or the failure or refusal to make a finding, and shall indicate what relief should be granted by the [SRO] to the petitioner" (8 NYCRR 279.4[a]). The regulation further states that "any issue not identified in a party's request for review, answer, or answer with cross-appeal shall be deemed abandoned and will not be addressed by a State Review Officer" (8 NYCRR 279.8[c][4]).
Here, although the parent raised allegations pertaining to additional school years and sought additional relief in the due process complaint notice that the IHO did not address or which the IHO indicated the parent had withdrawn (i.e., compensatory education, extended eligibility, district funding for an independent educational evaluation), the parent has not pursued and, therefore, is deemed to have abandoned such claims and relief on appeal (8 NYCRR 279.8[c][4]; see Parent Ex. A; IHO Decision at p. 5 n.18). In addition, the parent has not appealed the IHO's determinations with regards to pendency, therefore, those findings have become final and binding upon 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]).
B. Child Find
Turning to the crux of the dispute between the parties, the purpose of the "child find" provisions of the IDEA are to identify, locate, and evaluate students who are suspected of being a student with a disability and thereby may be in need of special education and related services, but for whom no determination of eligibility as a student with a disability has been made (see Handberry v. Thompson, 446 F.3d 335, 347-48 [2d Cir. 2006]; E.T. v. Bd. of Educ. of Pine Bush Cent. Sch. Dist., 2012 WL 5936537, at *11 [S.D.N.Y. Nov. 26, 2012]; A.P. v. Woodstock Bd. of Educ., 572 F. Supp. 2d 221, 225 [D. Conn. 2008], aff'd, 370 Fed. App'x 202 [2d Cir. Mar. 23, 2010]; see also 20 U.S.C. § 1412[a][3][A]; 34 CFR 300.111; 8 NYCRR 200.2[a][1], [7]). The IDEA places an ongoing, affirmative duty on State and local educational agencies to identify, locate, and evaluate students with disabilities residing in the State "to ensure that they receive needed special education services" (20 U.S.C. § 1412[a][3]; 34 CFR 300.111[a][1][i]; Forest Grove, 557 U.S. at 245; K.B. v. Katonah Lewisboro Union Free Sch. Dist., 2019 WL 5553292, at *7 [S.D.N.Y. Oct. 28, 2019], aff'd, 847 Fed. App'x 38 [2d Cir. Feb. 26, 2021]; E.T., 2012 WL 5936537, at *11; see 20 U.S.C. § 1412[a][10][A][ii]; see also 8 NYCRR 200.2[a][1], [7]; New Paltz Cent. Sch. Dist. v. St. Pierre, 307 F. Supp. 2d 394, 400 n.13 [N.D.N.Y. 2004]). The "child find" requirements apply to "children who are suspected of being a child with a disability . . . and in need of special education, even though they are advancing from grade to grade" (34 CFR 300.111[c][1]; see 8 NYCRR 200.2[a][1], [7]; D.K. v. Abington Sch. Dist., 696 F.3d 233, 249 [3d Cir. 2012]; J.S. v. Scarsdale Union Free Sch. Dist., 826 F. Supp. 2d 635, 660 [S.D.N.Y. Nov. 18, 2011]). To satisfy the requirements, a board of education must have procedures in place that will enable it to identify, locate, and evaluate such children (34 CFR 300.111[a][1]; 8 NYCRR 200.2[a][1], [7]).
Because the child find obligation is an affirmative one, the IDEA does not require parents to request that the district evaluate their child (see Reid v. District of Columbia, 401 F.3d 516, 518 [D.C. Cir. 2005] [noting that "[s]chool districts may not ignore disabled students' needs, nor may they await parental demands before providing special instruction"]; see also Application of the Bd. of Educ., Appeal No. 11-153; Application of a Student Suspected of Having a Disability, Appeal Nos. 11-092 & 11-094). A district's child find duty is triggered when there is "reason to suspect a disability and reason to suspect that special education services may be needed to address that disability" (J.S., 826 F. Supp. 2d at 660; New Paltz Cent. Sch. Dist., 307 F. Supp. 2d at 400 n.13, quoting Dep't of Educ., State of Hawaii v. Cari Rae S., 158 F. Supp. 2d 1190, 1194 [D. Haw. 2001]). To support a finding that a child find violation has occurred, school officials must have overlooked clear signs of disability and been negligent in failing to order testing, or have no rational justification for deciding not to evaluate the student (Mr. P v. W. Hartford Bd. of Educ., 885 F.3d 735, 750 [2d Cir. 2018], quoting Bd. of Educ. of Fayette County v. L.M., 478 F.3d 307, 313 [6th Cir. 2007]; see A.P., 572 F. Supp. 2d at 225).
A district's violation of its child find obligation a procedural violation of the IDEA (see Mr. P, 885 F.3d at 750; D.K., 696 F.3d at 249; D.A. v. Houston Indep. Sch. Dist., 629 F.3d 450, 453 [5th Cir. 2010]; Bd. of Educ. of Fayette Cty., 478 F.3d at 313; see also Handberry, 446 F.3d at 347). As one district court explained, "the IDEA is not an absolute liability statute and the 'Child Find' provision does not ensure that every child with a disability will be found" (A.P., 572 F. Supp. 2d at 225).
Related to child find is the referral process for evaluation. Upon written referral, a district must initiate an individual evaluation of a student suspected of having a disability (see Educ. Law § 4401-a[1], [3]; 8 NYCRR 200.4[a][1][i]; [a][2][ii]-[iv]; [b]; see also 20 U.S.C. § 1414[a][1][B]; 34 CFR 300.301[b]).
Here, the evidence in the hearing record indicates that the district initiated the evaluation process for the student in July 2024 after the parent's June 2024 letter to the district (Tr. pp. 130-32; Dist. Exs. 1 at p. 1; 2 at pp. 1-2; 5 ¶ 10). However, the parent argues that the district had an obligation to initiate the process sooner. The parent no longer contends that the district should have initiated an evaluation of the student prior to the 2023-24 school year. Rather, it appears that the family moved to or returned to reside in the district in or shortly before August 2023 (see Tr. p. 220; Dist. Mot. to Dismiss Ex. 5).[3] However, the parent argues that her communications with the district in August 2023 should have put the district on notice that the student needed to be evaluated to determine her eligibility for special education as a student with a disability.
With respect to such communications, the documentation in the hearing record includes an email dated August 8, 2023, to confirm a "booking" for a virtual session with one of the district's welcome centers (Parent Ex. K at p. 1). While the August 8, 2023 email names the student, it does not reference any specific information about the student or her needs (id. at pp. 1-2). Further, the parent testified that the virtual session did not occur (see Tr. p. 211). Another email from the parent to the district dated August 22, 2023, contained a subject line of "Hi enrolling 2 special needs children" and the body advised that the parent would like to enroll and register two of her children asking if she could come in to do so that same day (Parent Ex. L at p. 1). Within this email, the student was not named and, although the subject line referred to the children having "special needs," it did not request an evaluation (id.). Accordingly, this email alone did not put the district on notice of the student's needs or otherwise automatically trigger the district's obligation to initiate an initial evaluation of the student under the provision in State regulation for written referral of a student (see 8 NYCRR 200.4[a]).
The parent testified that, on August 22, 2023, she went in person to the welcome center to enroll her children in the district (Parent Ex. I ¶ 6). The parent elaborated that she filled out a form, on which she indicated that the student "would need special services" and was provided a signed paper indicating that the student was registered with the district (Tr. pp. 204, 206-07). She indicated that she could not locate that paper and may have thrown it out (Tr. p. 219). The parent also testified that she returned to the welcome center at some point to bring more documents to complete the registration of the student (Tr. pp. 209, 219-20). The parent testified that she informed an employee at the welcome center that the student required special education and then emailed this employee to follow up on the student's needs for special education, but received no response (Tr. pp. 209-11; Parent Ex. I ¶ 6). Neither the signed document reflecting the student's registration, nor the emails to the employee at the welcome center that the parent described in her testimony were offered into evidence during the impartial hearing (see Tr. pp. 209-10, 219, 222-23). The IHO offered the parent the opportunity to submit the email to the welcome center employee as evidence after the close of testimony (Tr. pp. 228-29).[4] The parent did not submit the email but did submit a document titled "Enrollment Assignment Letter" (see IHO Decision at pp. 10 nn. 42, 44).
The IHO did not credit the parent's testimony about the events in August 2023 (IHO Decision at p. 11). The IHO specifically stated that she found it "incredible that a parent, who has been through this process with another special needs child would dispose of emails and other documentation with the [district] where she indicates that [the s]tudent needs special services; and further would wait several months before pursuing action in this matter" (id.). Generally, an SRO gives due deference to the credibility findings of an IHO, unless non-testimonial evidence in the hearing record justifies a contrary conclusion or the hearing record, read in its entirety, compels a contrary conclusion (see Carlisle Area Sch. v. Scott P., 62 F.3d 520, 524, 528-29 [3d Cir. 1995]; P.G. v. City Sch. Dist. of New York, 2015 WL 787008, at *16 [S.D.N.Y. Feb. 25, 2015]; M.W. v. New York City Dep't of Educ., 869 F. Supp. 2d 320, 330 [E.D.N.Y. 2012], aff'd 725 F.3d 131 [2d Cir. 2013]; Bd. of Educ. of Hicksville Union Free Sch. Dist. v. Schaefer, 84 A.D.3d 795, 796 [2d Dep't 2011]; Application of a Student with a Disability, Appeal No. 12-076). Here, there is insufficient basis to disturb the IHO's credibility finding based on the lack of corroborating documentation, which led the IHO to question the reliability of the parent's testimony.
As for the enrollment letter, the IHO declined to consider it because the parent did not offer it into evidence during the impartial hearing when it could be examined by the district, the IHO did not solicit it, and, in the IHO's view, the authenticity of the parent's signature on the document was questionable (IHO Decision at p. 10 n. 42). On appeal, the parent argues that the IHO erred in refusing to consider the document. The IHO did not abuse her discretion in declining to consider the document submitted after the close of testimony.[5] However, even if considered, the document does not support the parent's position. Initially, it is not clear whether the enrollment letter was the document about which the parent testified (see Tr. pp. 204, 206-07). The enrollment letter is directed to the principal of the district public school that the student was "zoned" to attend, indicating that the student had "visited a Family Welcome Center" (IHO Ex. X). According to the letter, the family had been instructed to report to the school with documents proving residence and the student's date of birth, immunization, and recent school records (id.). The enrollment letter included an acknowledgement section, signed by the parent, which read: "I understand that I must accompany my child and present this assignment letter and the above documents at the school in which my child has been assigned in order to complete the registration process. I also affirm that I have met with a counselor and received information about the school in which my child has been assigned and agree to the placement for my child" (id. [emphasis added]). The letter does not indicate that the registration of the student was complete and contains no request for an evaluation or reference to the student having a disability (id.).
Even assuming the district was aware that the student resided in the district by virtue of the parent's initial efforts to register the student, given the lack of credible evidence that the parent communicated the student's need for special education to the district, there is insufficient basis to disturb the IHO's determination that the district did not violate its child find obligation to the student by not initiating an evaluation of the student in or shortly after the August 2023 timeframe.
Subsequently, the student did not attend the district public school identified in the enrollment letter but, instead, enrolled at iBrain (Parent Exs. C; E; I ¶¶ 8-9; J ¶ 10). At that point, the district was not in a position to identify the student as needing special education based on the referrals from district educators or by monitoring student progress (see 8 NYCRR 200.4[a]; see also 8 NYCRR 100.2[ii]). Nevertheless, the district maintained a child find obligation to the student. If parents enroll their child in a private school, the district in which the school is located has a child find obligation (see 34 CFR 300.131; 8 NYCRR 200.2[a][7]).[6] Generally speaking, a district is required to locate, identify, and evaluate students with disabilities attending private schools located within the district in order to ensure equitable participation of parentally placed students with disabilities and to ensure an accurate count of those students (see 34 CFR 300.131[a]; [b][2]; 8 NYCRR 200.2[a][7]). In carrying out its child find obligations, a school district is required to "undertake activities similar to the activities undertaken for the agency's public school children" and in a "comparable" time period (34 CFR 300.131[c]; 8 NYCRR 200.2[a][7]; see Child Find for Parentally-Placed Private School Children With Disabilities, 71 Fed. Reg. 46,593 [Aug. 14, 2006]). Such activities could include "widely distributing informational brochures, providing regular public service announcements, staffing exhibits at health fairs and other community activities, and creating direct liaisons with private schools" (Child Find for Parentally-Placed Private School Children With Disabilities, 71 Fed. Reg. 46,593 [Aug. 14, 2006]). In addition, "[t]he school district shall consult with representatives of private schools and representatives of parents of parentally placed private school students with disabilities on the child find process" (8 NYCRR 200.2[a][7]).
These type of child find activities are geared toward informing parents that special education may be available for their children and communicating with private schools, but, here, the parent was aware of such availability given that the she had another child who was found eligible for and received special education from the district during the 2023-24 school year (Tr. pp. 202-203). Further, the evidence in the hearing record does not reflect any communication from the parent to the district that the student was attending iBrain until more than six months later, in the March 25, 2024 letter to the district (Parent Ex. B). Likewise, while permissible, there is no indication that the staff from iBrain referred the student to the district for an evaluation or to develop an IEP.
Turning to the cross-appeal, the district argues that the IHO erred in finding the district had notice that the student should be evaluated for special education on March 25, 2024 and posits that it first had notice of the student's possible need for special education on June 14, 2024, upon receipt of the parent's June 10, 2024 letter (see Dist. Exs. 1; 2; 5 ¶ 10). The district's witness testified that the district first became aware of the student in July 2024 but then amended her response to June 2024, noting typos in the district's records (Tr. p. 144; IHO Ex. VI at pp. 3-4). The parent's March 25, 2024 letter to the district is in evidence along with a copy of the transmittal email to which the letter was attached (Parent Ex. B; IHO Ex. V). The letter described the student's diagnosis and "multifaceted and complex" educational needs and stated the parent's view that "the [district's] failure to recommend a program and placement" constituted a failure to "appropriately address her educational needs for the 2023-2024 extended school year" (Parent Ex. B at p. 2). The letter expressly states that the "[p]arent disagrees with the lack of evaluations by" the district (id.). The letter also states that the parent was concerned by the district's "failure to convene an IEP meeting and develop an IEP for [the student] for the 2023-2024 extended school year" (id.).
While the parent's March 2024 letter did not contain a written referral of the student for an initial evaluation—i.e., insofar as the letter sets forth allegations that the district failed to act in the past rather than a request for future action (see 8 NYCRR 200.4[a]; see also D.K., 696 F.3d at 248 n.5 [finding that "general expressions of concern" do not amount to "a 'parental request for evaluation' under the plain terms of the statute"], quoting 20 USC 1415[d][1][A][i]; Application of a Student Suspected of Having a Disability, Appeal No. 23-055)—it could be deemed to have put the district on notice that it should pursue an evaluation of the student on its own initiative. Nevertheless, even if the district should have been aware of the need to evaluate the student as of March 24, 2024, the district was then obligated to obtain the parent's consent to evaluate the student and, once received, the district had 60 days to complete the initial individual evaluation of the student and "60 school days" to "arrange for appropriate special programs and services" (34 CFR 300.300[a][1][i]; 300.301[c][1]; 8 NYCRR 200.4[b][1], [7]; [e][1]).[7] Thus, even if the March 2024 letter to the district triggered the district's obligation to evaluate the student under child find and parental consent was promptly obtained, the district's time to evaluate the student and to arrange for appropriate special programs and services would not have expired prior to the end of the 2023-24 school year.
Therefore, the district did not yet have an obligation to provide the student with FAPE for any portion of the 2023-24 school year. Given the foregoing, I find that the IHO erred in ruling that the district denied the student FAPE from March 25, 2024 through June 21, 2024.
VII. Conclusion
Having found that the district did not deny the student a FAPE for the 2023-24 school year, the necessary inquiry is at an end, and there is no need to determine the issue of whether iBrain was an appropriate unilateral placement for the student for the 2023-24 school year or, whether the equitable considerations weighed in favor of the parent's requested relief (Burlington, 471 U.S. at 370).
THE APPEAL IS DISMISSED.
THE CROSS-APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that the IHO's decision, dated March 5, 2025, is modified by reversing that portion which found that the district failed to offer the student a FAPE from March 25, 2024 to June 21, 2024 of the 2023-24 school year.
Footnotes
[1] Although the June 2024 letter also referenced the parent's rejection of the district's "most recent[ly] proposed" IEP and assigned school location for the student, the hearing record does not include a district IEP or school location letter (Dist. Ex. 2 at pp. 1-2; see Parent Exs. A-O; Dist. Exs. 1-5; IHO Exs. I-X).
[2] 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).
[3] Many times, a district would be notified of a student's presence in the district by a parent enrolling the student in the public school, and to facilitate this, each district must make publicly available its enrollment forms, procedures, instructions and requirements for determinations of student residency and age (8 NYCRR 100.2[y][2]).
[4] The parent's attorney claimed that the email in question had been referenced in the district's motion to dismiss (see Tr. p. 229); however, review of the district's motion does not include a description of an email similar to the email about which the parent testified (compare Dist. Mot. to Dismiss & Exs. 1-6, with Tr. pp. 209-11). The parent's counsel may have been referring to an internal district communication in which the district states that it did not have an email from the parent regarding the student but did receive an email on September 28, 2023 regarding the student's sibling (Dist. Mot. to Dismiss. Ex. 5). However, a communication about the sibling would not put the district on notice about the student's needs.
[5] Federal and State regulations provide that a party has the right to prohibit the introduction of evidence that has not been disclosed to that party at least five business days in advance of the impartial hearing (34 CFR 300.512[a][3]; 8 NYCRR 200.5[j][3][xii]). Courts have not enforced absolute adherence to the five-day rule for disclosure but have upheld the discretion of administrative hearing officers who consider factors such as the conditions resulting in the untimely disclosure, the need for a minimally adequate record upon which to base a decision, the effect upon the parties' respective right to due process, and the effect upon the timely, efficient, and fair conduct of the proceeding (see New Milford Bd. of Educ. v. C.R., 431 Fed. App'x 157, 161 [3d Cir. June 14, 2011]; L.J. v. Audubon Bd. of Educ., 2008 WL 4276908, at *4-*5 [D.N.J. Sept. 10, 2008], aff'd, 373 Fed. App'x 294 [3d Cir. 2010]; Pachl v. Sch. Bd. of Indep. Sch. Dist. No. 11, 2005 WL 428587, at *18 [D. Minn. Feb. 23, 2005]; Letter to Steinke, 18 IDELR 739 [OSEP 1992]; see also Dell v. Bd. of Educ., Tp. High Sch. Dist. 113, 32 F.3d 1053, 1061 [7th Cir. 1994] [noting the objective of prompt resolution of disputes]). Here, there is no indication that, in declining to consider the document, the IHO overlooked or improperly weighed any such factors.
[6] Moreover, the district of residence must not decline a parent's request to conduct an eligibility evaluation of the student (Letter to Eig, 52 IDELR 136 [OSEP 2009]; see Scarsdale Union Free Sch. Dist. v. R.C., 2013 WL 563377, at *7-*8 [S.D.N.Y. Feb. 4, 2013]; Moorestown Tp. Bd. of Educ. v. S.D., 811 F. Supp. 2d 1057, 1068-70 [D.N.J. 2011]; Reg'l Sch. Dist. No. 9 Bd. of Educ. v. Mr. and Mrs. M., 2009 WL 2514064, at *10 [D.Conn. Aug. 7, 2009]; District of Columbia v. Abramson, 493 F. Supp. 2d 80, 84-85 [D.D.C. 2007] [rejecting the proposition that a district of residence did not have a child find obligation due to the fact that the student was parentally placed in a private school in another district and finding that both public school districts retained child find obligations]). Here, the district is both the district in which the student resided as well as the district in which iBrain is located.
[7] A "school day" is defined as "any day, including a partial day, that students are in attendance at school for instructional purposes" (8 NYCRR 200.1[n][1]).