STATE OF NEW YORK
OFFICE OF STATE REVIEW
25-381
Application of a STUDENT WITH 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: The Law Office of Steven Alizio, PLLC, attorneys for petitioner, by Steven J. Alizio, Esq. and Justin B. Shane, Esq.
Liz Vladeck, General Counsel, attorneys for respondent, by Chrystal O'Connor, 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 for respondent (the district) to fund the cost of an independent educational evaluation (IEE). The 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 received services through the Early Intervention Program and later through the Committee on Preschool Special Education (CPSE) (Dist. Ex. 8 at p. 3). For kindergarten, the student attended a district public school where she received integrated co-teaching (ICT) services and related services (id.). It appears that she continued to attend the public school through seventh grade (id.). For the 2024-25 school year (eighth grade) the student was found eligible for special education as a student with an other health impairment and received ICT services along with speech-language therapy, occupational therapy (OT), and counseling (id. at p. 1). The student also received the support of a full-time health paraprofessional due to a seizure disorder, and access to an assistive technology device and accommodations for writing (id.).
In a letter dated December 4, 2024, the parent requested that the CSE convene to "discuss placement for high school next year" (Dist. Ex. 3 at p. 1). In a prior written notice dated December 6, 2024, the district indicted that it received the parent's request for a reevaluation and that the parent was requesting that the CSE consider placing the student at a named nonpublic school (Dist. Ex. 4 at p. 1). The district agreed to reevaluate the student (id.). As part of the student's reevaluation, the district notified the parent of its intent to conduct a classroom observation, psychoeducational assessment, and social history update (id. at pp. 1-2; see Parent Ex. F ¶4;). The district's assessments were thereafter completed in December 2024 and January 2025 (Dist. Exs. 8 -9; 13.
A CSE convened on January 27, 2025, and created an IEP for the student with a proposed implementation date of February 3, 2025 (Dist. Ex. 6 at pp. 1, 39; see Parent Ex. F ¶ 6). The January CSE found the student eligible for special education as a student with a learning disability and recommended that she receive ICT services for English language arts (ELA), math, social studies, and sciences from February 3, 2025 through June 26, 2025 (Dist. Ex. 6 at pp. 1, 30).[1] The CSE also recommended that the student receive related services including one 30-minute session per week of group counseling services, two 30-minute sessions per week of group OT, one 30-minute session per week of individual speech-language therapy, one 30-minute session per week of group speech-language therapy, as well as the support of full-time health paraprofessional services (id. at p. 31). The CSE also recommended assistive technology devices and services consisting of a web-based computer with the support of word predictions with auditory feedback, speech to text, PDF annotations support, and headphones with a microphone as needed for writing tasks (id.).
By letter dated February 26, 2025, the parent, through her attorney, expressed her disagreement with the district's evaluations and requested funding for an IEE consisting of a neuropsychological evaluation by a specified provider at a cost not to exceed $8,500 (Parent Exs. B at p. 2; F ¶¶ 5-7). The parent was concerned that the district's evaluations failed to examine the student's attention, executive functioning, and fluency in math (Parent Exs. B at p. 2; E ¶ 6; F ¶¶ 5-7). The district sent the parent a letter acknowledging the parent's request for an independent neuropsychological evaluation and indicating that the district approved a request for an additional reevaluation on March 3, 2025 (Dist. Ex. 16 at p. 2). By prior written notice dated March 14, 2025, the district informed the parent that it agreed to the parent's request for a reevaluation and identified a neuropsychological assessment as the only part of the reevaluation (Dist. Ex. 17 at pp. 1-2).The parent responded to the prior written notice advising the district that she had not requested a reevaluation, that she requested an IEE "in the form of a comprehensive neuropsychological evaluation," and that the parent's selected provider charged a rate of $8,500 and did not accept assessment authorization forms from the district (Dist. Ex. 21 at p. 2).
On March 24, 2025, the district sent the parent an assessment authorization explaining how to obtain the requested independent neuropsychological evaluation; however, the authorization included a $5,000 price cap (Dist. Exs. 18; 19; 21 at p. 1; see Parent Ex. F ¶ 8).[2]
A. Due Process Complaint Notice and Subsequent Events
In a due process complaint notice dated March 24, 2025, the parent alleged that the district failed to thoroughly assess the student in all areas of her suspected disability and failed to appropriately respond to the parent's request for an IEE (Parent Ex. A at p. 1). Specifically, the parent alleged that the district conducted limited testing of the student's cognitive and academic skills and failed to conduct objective testing of the student's attention, executive functioning, and speech and language skills (id. at p. 2). The parent further argued that the district, when informed of the parent's request for an IEE, failed to either promptly fund the evaluation or file a due process complaint notice (id. at pp. 2-3). For relief, the parent sought funding for a neuropsychological evaluation from her identified provider at a rate not to exceed $8,500, as well as a declaratory finding that the district failed to properly evaluate the student (id. at p. 4).
In email correspondence between March 24, 2025 and March 26, 2025, the parent informed the district that she could not agree to the district's rate cap of $5,000 because the parent's specified provider's rate was $8,500 (Parent Ex. D). On March 26, 2025, the parent signed a district form checking a box that indicated she did not consent to the reevaluation (Dist. Ex. 20).
B. Impartial Hearing Officer Decision
Following a prehearing conference on April 24, 2025, an impartial hearing convened before an IHO with the Office of Administrative Trials and Hearings (OATH) on May 7, 2025 and concluded on May 16, 2025 after two days of proceedings (April 24, 2025 Tr. pp. 1-13; May 7, 2025 Tr. pp. 97-111; May 16, 2025 Tr. pp. 1-60).[3] Although the district initially rested its case, the IHO allowed the district to reopen its case and call a witness, the district's director of school-based evaluations, compliance, and school support (director) (May 7, 2025 Tr. p. 106; May 16, 2025 Tr. pp. 4, 17-28). The parent's case consisted of two witnesses, the parent herself and a psychologist (May 7, 2025 Tr. p. 106; May 16, 2025 Tr. pp. 4-16, 28-42). Six parent exhibits and 21 district exhibits were entered into evidence without objection (May 7, 2025 Tr. pp. 98-99, 101-104; see Parent Exs. A-F; Dist. Exs. 1-21).
In a decision dated May 19, 2025, the IHO found that the district's evaluations were appropriate, that the district responded appropriately to the parent's request for an IEE, and that the parties mainly disagreed on costs (IHO Decision at pp. 6-10). Specifically, the IHO found that although the district did not conduct a neuropsychological evaluation, it nevertheless programmed for areas of concern, including executive functioning (id. at p. 8). Further, the IHO found that in response to the parent's request for an IEE, the district promptly agreed to fund a neuropsychological evaluation and sent the parent information regarding the district's rates and procedures (id. at pp. 6-7). Finally, the IHO determined that the parties disagreed mainly on costs, and that the parent has not shown anything justifying an upward departure from the district's rate (id. at pp. 9-10). The IHO determined that the district did not deny the student a FAPE (id. at p. 10). Accordingly, the IHO found the district's rate of $5,000 for a neuropsychological evaluation was appropriate and ordered the parent to follow the district's procedures to obtain an IEE if she still desired one (id.).
IV. Appeal for State-Level Review
The parent appeals, alleging that the IHO erred in allowing the district to defend its evaluations at the impartial hearing, in finding that the district's evaluations were appropriate, in finding that the district had established cost criteria for the IEE, in finding that the district communicated such criteria to the parent, in reaching issues not raised during the impartial hearing, in permitting a district witness to testify after the district rested its case, and in issuing a vague and ambiguous order. In support of her request for review, the parent proposed additional evidence to be considered on appeal.
More specifically, the parent argues that the district should not have been allowed to defend its evaluations at the impartial hearing because the district's agreement to fund a neuropsychological evaluation should have constituted an admission that its evaluations were insufficient. Further, even if the district could have defended its evaluations, the IHO should have found its evaluations to be inappropriate because the district offered no evidence to rebut the testimony of the parent's witness. Turning to the cost of the evaluations, the parent argues that the district failed to establish cost criteria for the IEE because the district's witness testified to multiple possible costs for an IEE. Further, the parent argues that she never received the district's cost criteria or a list of available providers. In any event, the parent contends that in allowing a district witness to testify after the district rested its case, the IHO denied her due process. Finally, the parent asserts that the IHO should not have made findings regarding issues outside the scope of the hearing, including FAPE, and should have issued a more specific final order. For relief, the parent seeks an order compelling the district to fund the parent's requested neuropsychological evaluation with her identified provider at a rate not to exceed $8,500.
In an answer, the district seeks affirmation of the IHO's decision. The district alleges that correspondence, between itself and the parent, demonstrates that the parent was aware of the district's cost criteria for the IEE. Further, the district alleges that the parent never provided any information justifying an upward departure from the district's cost criteria. The district then defends the conduct of the impartial hearing, arguing that it properly defended its evaluations and that the parent never objected to the testimony of an additional witness at the hearing. Finally, the district requests that the parent's proposed evidence on appeal be rejected because the parent failed to explain why it could not have been offered at the hearing or why its contents are necessary for a resolution of this matter.
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 generally Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 239 [2009]; Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 [1982]).
A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 [2d Cir. 2014]; R.E. v. New York City Dep't of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). "'[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP'" (Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998], quoting Rowley, 458 U.S. at 206; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009]). The Supreme Court has indicated that "[t]he IEP must aim to enable the child to make progress. After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement" (Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. 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]).[4]
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. Preliminary Matters
1.Additional Evidence and Conduct of the Hearing
Along with her request with review, the parent seeks admission of additional evidence. The additional evidence consists of three pages of email correspondence between the parent's attorney, district's attorney, and the IHO, all of which occurred two days before the rescheduled hearing date. The emails purportedly memorialize the district's request to reopen its case and the parent's objection thereto. The district opposes the entry of such additional evidence, claiming that the parent has not explained why this information could not have been raised at the impartial hearing or why it is necessary for the resolution of this matter.
Generally, documentary evidence not presented at an impartial hearing may be considered in an appeal from an IHO'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 a Student with a Disability, Appeal No. 08-003; see also 8 NYCRR 279.10[b]; Landsman v. Banks, 2024 WL 3605970, at *3 [S.D.N.Y. July 31, 2024] [finding a plaintiff's "inexplicable failure to submit this evidence during the IHO hearing barred her from taking another bite at the apple"]; L.K. v. Ne. Sch. Dist., 932 F. Supp. 2d 467, 488-89 [S.D.N.Y. 2013] [holding that additional evidence is necessary only if, without such evidence, the SRO is unable to render a decision]).
Nevertheless, in this instance, the additional evidence consists of email communications between the parties and the IHO, in which the district requested permission to present a witness, the parent objected, and the IHO granted the district's request (SRO Ex. A). As these communications could be considered "arguments or written requests for an order filed by the parties for consideration by the [IHO]" they sufficiently fit within those items that are a part of the hearing record under State regulation (8 NYCRR 200.5[j][5][vi][6]). Accordingly, although they may not be relevant to a determination in this matter they are accepted into the hearing record.
Turning to the substance of the parent's request, the parent seeks admission of the proposed exhibit in order to support her claim that the IHO's decision to allow the district to reopen its case and present a witness denied her the right to due process. In the district's opening statement, counsel for the district indicated that the district was not presenting any witnesses and was resting on its documentary evidence (May 7, 2025 Tr. p. 105). However, the hearing was adjourned as the parent's witness was ill (id. at pp. 107-08). According to the additional evidence submitted by the parent, on May 14, 2025, the district requested that it be permitted to present a witness noting that due to the rescheduling of the hearing, the district's witness was available (SRO Ex. A). The IHO then granted the district's request over the parent's objection (id. at p. 1).
Generally, unless specifically prohibited by regulation, IHOs are provided with broad discretion, subject to administrative and judicial review procedures, in how they conduct an impartial hearing, so long as they "accord each party a meaningful opportunity" to exercise their rights during the impartial hearing (Letter to Anonymous, 23 IDELR 1073 [OSEP 1995]; see Impartial Due Process Hearing, 71 Fed. Reg. 46,704 [Aug. 14, 2006] [indicating that IHOs should be granted discretion to conduct hearings in accordance with standard legal practice, so long as they do not interfere with a party's right to a timely due process hearing]). At the same time, the IHO is expected to ensure that the impartial hearing operates as an effective method for resolving disputes between the parents and district (Letter to Anonymous, 23 IDELR 1073). State and federal regulations balance the interests of having a complete hearing record with the parties having sufficient opportunity to prepare their respective cases and review evidence.
While the parent appeals asserting that the IHO erred by permitting the district to present a witness after the district rested its case, the parent does not provide any supporting factual or legal specificity to explain how or why the IHO's decision was in error. Overall, neither the parent's arguments nor the additional evidence support finding that the parent was denied due process by the IHO during the impartial hearing process.
2.Scope of the Hearing
The parent asserts that the IHO went outside the scope of the hearing in finding that the district did not deny the student a FAPE. Review of the IHO's decision shows that, on a few occasions, the IHO framed and addressed the parent's arguments as an allegation that the district denied the student a FAPE by failing to comprehensively evaluate the student (IHO Decision at pp. 3, 5-6, 10). Although the parent's due process complaint notice does not include a specific allegation of a denial of a FAPE, it begins with a request for an impartial hearing due, in part, to "the [district's] failure to thoroughly assess [the student] in all areas of her suspected disability" (Parent Ex. A at p. 1). A claim alleging failure to properly evaluate a student in all suspected areas of disability is an allegation that the district committed a procedural violation of the IDEA (see e.g., C.M. v. New York City Dep't of Educ., 2017 WL 607579, at *17 [S.D.N.Y. Feb. 14, 2017][finding that the district committed a procedural violation of the IDEA by not conducting additional evaluations in all areas of student's suspected disability]; see 34 C.F.R. 300.320; 8 NYCRR 200.4[b]). Further, the parent's attorney confirmed, at the prehearing conference, that the parent was alleging a failure to properly evaluate the student (April 24, 2025 Tr. pp. 5-6). This argument was reiterated during the parent's closing statement (May 16, 2025 Tr. pp. 52-53). At no point did the parent withdraw her claim regarding the district's evaluations (see generally April 25, 2025 Tr. pp. 1-13; May 7, 2025 Tr. pp. 97-111; May 16, 2025 Tr. pp. 1-60). Given that the parent did not withdraw her claim asserting a failure to properly evaluate the student, the IHO appropriately addressed the parent's claim and, after finding that the district's evaluations were appropriate, the IHO's additional language indicating that the district did not deny the student a FAPE, based on the district having conducted appropriate evaluations, did not go outside the scope of the hearing.
Nevertheless, the only relief requested by the parent in this matter is that the district fund an IEE at the rate of $8,500 for a neuropsychological evaluation to be conducted by the parent's identified provider. As asserted by the parent in her request for review, prior to the commencement of this proceeding, the district agreed with the parent's request for an IEE (Dist. Exs. 16-19; 21 at pp. 1-2). When 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). Here, the record reflects that the district moved expeditiously to fund the parent's requested evaluation (see Dist. Exs. 16-19). Because the district decided to fund the IEE rather than to commence a proceeding to defend its evaluations, the appropriateness of the district's evaluations is not relevant to the outcome of this proceeding. Accordingly, the IHO's findings regarding the appropriateness of the district's evaluations will not be further discussed.
B. Independent Educational Evaluation (IEE)
With respect to the IEE, the parent seeks reversal of the IHO's decision which denied her request for an order requiring the district to fund a neuropsychological evaluation from her chosen provider at a rate of $8,500.
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]).[5]
As noted above, 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 recently found that, if a district and a parent agree that a student should be evaluated before the required triennial evaluation "the parent must disagree with any given evaluation before the child's next regularly scheduled evaluation occurs" or "[o]therwise, the parent's disagreement will be rendered irrelevant by the subsequent evaluation" (D.S. v. Trumbull Bd. of Educ., 975 F.3d 152, 170 [2d Cir. 2020]).
Here, the hearing record reflects that the parent communicated her request for an IEE to the district on February 26, 2025 (see Parent Ex. B). In response, the district confirmed that it agreed to the parent's request for an IEE (see Dist. Ex. 17). In further communications with the district, the parent was informed of the district's use of assessment authorization forms as well as the district rate cap for the evaluation at $5,000 (Parent Ex. D at p. 1). On March 24, 2025, the same day that the district prepared its assessment authorization forms, the parent filed the due process complaint notice in this matter (Parent Ex. A; Dist. Ex. 21 at p. 1). Accordingly, the hearing record reflects the district's willingness to work with the parent towards obtaining an IEE. However, the parties dispute the rate that should be paid for the evaluation, with the parent requesting the full $8,500 charged by her chosen provider and the district setting a requirement for authorization forms and a maximum rate of $5,000 pursuant to its cost containment policy (see Parent Ex. D; Dist. Exs. 18-19; 21 at pp. 1-2).
Regarding the issue of the maximum reimbursement rate, when a parent requests an IEE, the district must provide the parent with a list of independent evaluators from whom the parent can obtain an IEE, as well as the district's criteria applicable to IEEs should the parents wish to obtain evaluations from individuals who are not on the list (Educ. Law § 4402[3]; 34 CFR 300.502[a][2]; [e]; 8 NYCRR 200.5[g][1][i], [ii]; see Letter to Parker, 41 IDELR 155 [OSEP 2004]). The criteria under which the publicly-funded IEE is obtained, including the location of the evaluation and the qualifications of the independent evaluator, must be the same as the criteria that the public agency uses when it initiates an evaluation (34 CFR 300.502[e][1]; 8 NYCRR 200.5[g][1][ii]; see Letter to Anonymous, 103 LRP 22731 [OSEP 2002]). If the district has a policy regarding reimbursement rates for IEEs, it may apply such policy to the amounts it reimburses the parent for the private evaluations (34 CFR 300.502[e][1]; see Individual Educational Evaluation, 71 Fed. Reg. 46689-90 [Aug. 14, 2006]). The district may also establish maximum allowable charges for specific tests to avoid unreasonable charges for IEEs (see Letter to Anonymous, 103 LRP 22731 [OSEP 2002]). When enforcing reasonable cost containment criteria, the district must allow parents the opportunity to demonstrate that "unique circumstances" justify an IEE that does not fall within the district's cost criteria (id.; Individual Educational Evaluation, 71 Fed. Reg. 46689-90 [Aug. 14, 2006]).
In this matter, the district provided the parent with information to obtain the requested neuropsychological evaluation, including its cost-containment policies (Dist. Exs. 19 at pp. 1-8; 21 at p. 1). The parent denied receiving the district's registry of providers or the district authorization forms; however, the parent acknowledged that the district advised her of the requirements for an authorization form to obtain an IEE as well as the $5,000 cap on the cost of the evaluation (May 16, 2025 Tr. pp. 34-42; Parent Ex. F ¶¶ 7-8). The district's special education student information system (SESIS) for the student noted an entry dated March 24, 2025, which stated "AA (Assessment Authorization) forms were generated with an enhanced rate not to exceed $5,000. Letter sent to psychologist/team with a list of [i]ndependent providers to assist [the] parent" (Dist. Ex. 21 at p. 1). The district's corresponding notice to the parent dated March 24, 2025, stated "[p]lease find enclosed information on how to use this Assessment Authorization, and a [r]egistry of [i]ndependent [e]valuators to assist you in locating an evaluator" (Dist. Ex. 19 at p. 1). Although the parent testified that she did not receive those documents, as determined by the IHO, the parent's emails with the district included references to both the $5,000 rate cap and the requirement for the district's authorization forms (Parent Ex. D). Additionally, according to the parent's testimony, she identified a provider based on a list provided to her by her attorney (May 16, 2025 Tr. pp. 35-36, 41-42). Although the parent knew she could have obtained an IEE funded by the district at a cost of up to $5,000, on multiple occasions she reiterated her request for the district to fund the IEE to be provided by her specified provider at the provider's rate of $8,500 (Parent Ex. D at p. 1; Dist. Exs. 15; 21 at p. 2). Finally, the parent filed for due process within days of being advised that the district could not fund an IEE conducted by the identified provider at the rate of $8,500 (Parent Exs. A; D; Dist. Ex. 21 at pp. 1-2).
Based on the above, the weight of the evidence weighs towards finding that the district provided the parent with information as to how to obtain an IEE at district expense, including a list of providers; however, even if the parent did not have the list of providers, the evidence shows that the parent knew how to obtain an evaluation in accordance with the district's cost-containment policy but desired an evaluation to be conducted by the provider she identified and then the filing of the due process complaint notice in this matter halted the process for obtaining an IEE.
Further, although not necessary for a determination in this matter, the district presented testimonial evidence at the impartial hearing of its cost-containment criteria, including requirements for an upward departure (May 16, 2025 Tr. pp. 19-22). Reviewing the parent's arguments, the parent did not provide adequate justification for why the district's cost-containment policy should not apply. The district director testified that the district approves enhanced rates for independent evaluations and deviates from its cost criteria when a student's situation "involves unique circumstances" such as a specific requirement that a provider possesses a "specialized licensing beyond the standard qualifications for conducting a neuropsych[ological evaluation]" (May 26, 2025 Tr. pp. 19-20). In contrast, when the parent's witness was asked for her understanding of the market rate for neuropsychological evaluations, the psychologist admitted that the rate could vary (May 16, 2025 Tr. p. 6). Although the psychologist described factors which might affect her rate, she did not indicate how any of these factors applied to the student in question (id.). Given the above, the hearing record does not indicate that the district's cost-containment procedures were unreasonable, nor does it reveal any factor justifying an upward departure from the district's rate. Here, the district does not assert that it was unwilling to provide the student with an IEE; on the contrary, the district agreed to the neuropsychological evaluation. As the parent has not yet obtained an IEE, there is no harm in requiring that the IEE conform to the district's criteria. Therefore, the parent is entitled to reimbursement for an IEE, subject to the district's criteria and, in the event the parent wishes to obtain an evaluation from an evaluator whose fee is greater than permitted by the district's cost containment criteria, the district must provide the parent with an opportunity to demonstrate that unique circumstances justify an IEE that does not fall within the district's cost containment criteria.
VII. Conclusion
Having determined that there is an insufficient basis to disturb the IHO's finding that the parent is entitled to an IEE at public expense subject to the district's cost-containment procedures, the necessary inquiry is at an end.
I have considered the parties' remaining contentions and find them unnecessary to address in light of my determination above.
THE APPEAL IS DISMISSED.
Footnotes
[1] The IEP recommended that beginning in September 2025 the student transition from ICT services to a 15:1 special class for her core academic instruction (Dist. Ex. 6 at p. 30).
[2] The documents indicated that a registry of independent evaluators was included in the package; however, review of the documents submitted into evidence does not include a registry (Dist. Ex. 19 at p. 1; see Dist. Exs. 18,19).
[3] Each transcript is paginated separately. A clarification submitted with the hearing record indicated that the "nonconsecutive pagination is due to vendor error." For clarity of the record, citations to the transcript will begin with the date of the specific proceedings.
[4] 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).
[5] 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]).