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 to be reimbursed for her son's tuition at Academics West for the 2023-24 school year.  The district cross-appeals from that portion of the IHO's decision which found that Academics West was an appropriate unilateral placement.  The appeal must be dismissed.  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

According to the parent, the student attended a nonpublic school from first through sixth grades (Parent Ex. R ¶ 7).  The student's nonpublic school along with the parent made an initial referral to the CSE in September 2022 to determine whether the student was eligible for special education services (Dist. Ex. 8).  Upon receiving consent, the district conducted an occupational therapy (OT) evaluation and a psychoeducational evaluation of the student in November and December 2022, respectively, while the student was in sixth grade (see Dist. Exs. 2; 5).  Prior to the evaluations, the student had received a diagnosis of attention deficit hyperactivity disorder (ADHD) for which he was treated "with both psychotherapy and medication" (Dist. Ex. 2 at p. 1).  Thereafter, on January 23, 2023, a CSE convened for an initial eligibility meeting, found the student eligible for special education services as a student with an other health impairment, and, because the student was parentally placed at a nonpublic school, developed an individualized education services plan (IESP) for the student with a projected implementation date of February 6, 2023, which  recommended that the student receive four periods per week of special education teacher support services (SETSS) (Dist. Ex. 1 at pp. 1, 14, 17).

According to the parent, in March 2023, the student had to leave his private school after an incident that involved the student bringing a knife to school, and the parent enrolled the student at a public school, which he attended for the remainder of the 2022-23 school year (Parent Ex. R ¶¶ 12-14).  A CSE convened on March 30, 2023 to develop an IEP for the student (Parent Ex. R ¶ 12; Dist. Ex. 9).  The March 2023 IEP recommended that the student receive the following services within the district public school: two periods per week of group SETSS for English language arts (ELA) in a general education classroom, two periods per week of group SETSS for math in a general education classroom, two periods per week of group SETSS for ELA in a separate location, and one 40-minute period per week of group counseling (Dist. Ex. 9 at pp. 21, 26).  A March 31, 2023 prior written notice summarized the recommendations of the March 2023 IEP (Dist. Ex. 10 at p. 2).  Shortly after starting at the public school, the student again brought a knife to school in response to a conflict with a classmate (Parent Ex. R ¶ 16).

Following the incident, the district convened a manifestation determination review (MDR) meeting on April 20, 2023 to determine if the misconduct was a result of the student's disability (IHO Ex. I at pp. 1, 11).  The parent disclosed, at the MDR meeting, that the student was "involved in an incident at his previous private school in which he brought a weapon item to school with him" and that the student had also "experienced bullying in their previous private school" (id.).  According to the MDR report, the MDR team determined that the student's behavior was not a manifestation of his disability (id. at p. 2).  After a period of suspension, the student returned to the public school and the district assigned him a 1:1 paraprofessional, not included on his IEP, to support the safety of the student and others and the student was switched to a different general education class (Tr. p. 85).

The parent obtained an independent neuropsychological assessment of the student, which was conducted over four dates in May and June 2023 (see Parent Ex. C).

The student continued to attend the public school placement at the start of the 2023-24 school year (Parent Exs. Q at p. 1; R at p. 4).  However, on or about September 21, 2023, the student was involved in an incident outside of school, in which the parent reported the student waved a knife and scissors at a former classmate (Parent Ex. R ¶ 24).  Thereafter, the student was psychiatrically hospitalized from September 21, 2023 to November 1, 2023 (Parent Exs. E at p. 1; R ¶¶ 25-27).  During this time, the student was receiving education from a tutor provided by the hospital (Parent Ex. P).  Following his discharge from psychiatric hospitalization, the student was admitted to an intensive day treatment program until his discharge on or about December 22, 2023 (Parent Ex. R ¶¶ 28-29).

On or about December 20, 2023, the parent informed the district by letter of her intent to unilaterally place the student at Academics West and seek public funding for the costs thereof (Parent Ex. B at pp. 2-3).  She also informed the district of the independent neuropsychological evaluation and claimed that she had previously provided a summary of the evaluation to the district (id. at p. 2).  On January 2, 2024, the parent enrolled the student at Academics West and paid tuition in the amount of $81,466.98 (Parent Ex. H).

A. Due Process Complaint Notice

In a due process complaint notice dated March 27, 2024, the parent alleged that the district denied the student a free appropriate public education (FAPE) for the 2023-24 school year (see Parent Ex. A).  Specifically, the parent alleged that the district failed to reconvene and develop an IEP or assign the student to attend a particular public school location for the 2023-24 school year (id. at p. 5).  The parent argued that the district failed to take the student's significant emotional and academic struggles into account following his psychiatric hospitalization (id. at p. 4).  The parent alleged that, by failing to reconvene a CSE, the district deprived the student of an appropriate public school placement (id. at p. 5).  The parent was also concerned that, although the district had made a paraprofessional available to the student during the 2022-23 school year, the March 2023 IEP made no such provision (id. at p. 3).  By way of relief, the parent sought tuition reimbursement for Academics West, reimbursement for the independent neuropsychological evaluation, and the provision of transportation services to and from Academics West (id. at pp. 5-6).

B. Impartial Hearing Officer Decision

An IHO with the Office of Administrative Trials and Hearings (OATH) convened an impartial hearing on May 3, 2024 and concluded on October 15, 2024, after 10 days of proceedings inclusive of prehearing and status conferences (see Tr. pp. 1-329).  In a decision dated January 31, 2025, the IHO found that the district met its burden of proving that it had offered the student a FAPE for the 2023-24 school year, the parent met her burden of demonstrating that Academics West was an appropriate placement for the student, and a balancing of equitable considerations did not favor the parent's requested relief (IHO Decision at pp. 8, 10-11).  The IHO further determined that the parent was not entitled to district funding of an independent neuropsychological evaluation (id. at p. 12).

Before turning to whether the district offered the student a FAPE for the 2023-24 school year, the IHO noted the district's appropriate handling of the knife incident that occurred in the public school during the 2022-23 school year, including its compliance with necessary procedures and regulations (IHO Decision at pp. 5-6).  For the 2023-24 school year, the IHO noted that the student's March 2023 IEP was timely and would not expire until March 2024, and that, for the short time that the student was attending the public school placement, he received all of the services recommended in the March 2023 IEP (id. at p. 6).  The IHO described the district's efforts to stay in contact with the parent and ensure that the student was receiving education throughout his hospitalization (id. at p. 7).  The IHO found that the parent never allowed the district an opportunity to properly reevaluate the student before unilaterally placing him at Academics West (id. at pp. 7-8).  Additionally, the IHO indicated that there was inconsistent proof regarding whether the parent had provided the independent neuropsychological evaluation to the district prior to December 2023, so the IHO declined to hold the district accountable for information that it may not have had (id. at p. 8).  Although the IHO noted the district failed to provide the parent with a school location letter for the 2023-24 school year, the IHO found that to be a procedural violation that did not, in itself, constitute a denial of FAPE (id. at p. 6).

Despite finding that the district offered the student a FAPE for the 2023-24 school year, the IHO went on to make findings regarding the appropriateness of the unilateral placement and the balancing of equitable considerations (see IHO Decision at pp. 9-11).  The IHO found that the testimony of Academics West's program director was sufficient to demonstrate that the placement was offering specially designed instruction to meet the student's unique needs (id. at pp. 9-10).  However, the IHO also found that the parent's December 22, 2023 notice to the district of her intent to unilaterally place the student at Academics West did not provide the district with sufficient time to respond, nor was the parent responsive to the district's inquiries (id. at p. 10).  Given those issues, as well as the parent's belated disclosure of the independent neuropsychological evaluation, the IHO determined that a balancing of equitable considerations did not favor the parent's requested relief (id. at pp. 10-11).

Finally, the IHO determined that the parent was not entitled to reimbursement for the independent neuropsychological evaluation (IHO Decision at p. 12).  Specifically, the IHO found that the district had completed a full battery of evaluations that were still timely, and that the parent had never communicated her disagreement with those evaluations (id.).  Because the parent never provided the district notice of her disagreement, the IHO determined that she was not entitled to reimbursement for the cost of the independent neuropsychological evaluation (id.).

IV. Appeal for State-Level Review

The parent appeals, alleging that the IHO erred in determining that the district had provided the student with a FAPE for the 2023-24 school year, that the parent was uncooperative with the district, and that the parent was not entitled to reimbursement for the independent neuropsychological evaluation.  The parent argues that the district's failure to reconvene a CSE at the parent's request constituted a denial of FAPE, that nothing about the parent's conduct warranted an adverse finding regarding equitable considerations, and that the district never evaluated the student regarding his behavior and, therefore, the district should reimburse the parent for the cost of the neuropsychological examination.  For relief, the parent seeks reimbursement for the cost of tuition at Academics West and the cost of the independent neuropsychological evaluation.

By answer and cross-appeal, the district argues that most of the IHO's decision should be affirmed, including the determinations regarding FAPE, equitable factors, and denial of reimbursement for the independent neuropsychological evaluation.  As a cross-appeal, the district argues that the parent did not meet her burden regarding the appropriateness of Academics West.  The district also argues that the parent's request for review was not properly verified and should therefore be rejected.

In her answer to the district's cross-appeal, the parent reiterates her allegations as set forth in the request for review and argues that the district's allegations about Academics West are conclusory and without evidentiary support.  .  Regarding the verification issue, the parent submits a verification of the request for review sworn to and signed by her.[1]

In its reply to the parent's answer to the cross-appeal, the district argues that the parent's pleading was served late, exceeds the allowable page length, and should be rejected.[2]

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]).[3]

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. Failure to Reconvene

As an initial matter, it is noted that the parent has not alleged that the March 2023 IEP was inappropriate for the student at the time it was developed.[4]  Instead, the issue presented is whether the district had an obligation to reconvene the CSE subsequent to the March 2023 IEP.

When asked during the impartial hearing why there was no attempt by the district to reconvene between the end of the 2022-23 school year and before the start of the 2023-24 school year, the district special education teacher replied there were no "inquiries to the IEP team about . . . reconvening, amending, or requesting a reevaluation" (Tr. p. 110).  The teacher further testified that the student's needs were "learning-based issues" and the MDR determined that the knife incident that occurred in the 2022-23 school year was not a manifestation of his disability, and it was an isolated incident, as the student completed sixth grade without more incidents (Tr. p. 118).

As of the beginning of the 2023-24 school year, the student was placed in an integrated co-teaching (ICT) classroom, "proactively" as a general education student with the support of two teachers (Tr. p. 95).  The March 2023 IEP, which recommended SETSS and counseling, was the operative IEP at the beginning of the 2023-24 school year (see Dist. Ex. 9).  As noted above, on or about September 21, 2023, the student was involved in an incident outside of school, which, according to the parent's testimony, involved the student waving a knife and scissors at a former classmate (Parent Ex. R ¶ 24).  The student was then hospitalized from September 21, 2023 to November 1, 2023 (Parent Exs. E at p. 1; R ¶¶ 25-26).

The district special education teacher testified that, in September 2023, she reached out to the parent to reconvene a meeting, formalize the ICT recommendation, discuss adding a paraprofessional to the student's programming, and that is how she became aware that the student was hospitalized (Tr. pp. 95, 108).  The teacher indicated that, when she spoke to the parent, they agreed a CSE meeting would take place when the student returned to the public school (Tr. pp. 99-100).  She further indicated that, once she was informed that the student would not be returning to the public school, her "outreach as far as updating the IEP" and scheduling the CSE meeting "stopped" (Tr. p. 96).  The special education teacher explained that once the student was no longer enrolled in the public school, she did not "have access to him on [her] system" and, therefore, could not do anything such as hold a CSE meeting (Tr. p. 97).[5]

After the student's hospitalization, the parent and the district exchanged several emails.  On October 2, 2023, a school counselor reached out to the parent via email and inquired if the student was still hospitalized; on the same day, the parent replied that he was and that the student would be unable to return to the public school and requested that the district determine a "new school placement," which she understood would entail "an emergency CSE meeting" (Parent Ex. Q at p. 6).

On October 6, 2023, a district pupil personnel secretary (secretary) emailed the parent requesting that she acquire written verification from the hospital indicating that the student was receiving education there, so he could be "discharge[d]" from the public school, noting that the parent had stated that the student would not be returning to the public school location he had previously attended (Parent Ex. Q at p. 12; see Tr. p. 98).  In response to the parent's statement that she would acquire the verification, the secretary further requested that the hospital specify the first day that it provided the student with instruction (Parent Ex. Q at p. 13).  The parent and the secretary exchanged emails on October 13, 15, and 17, 2023, to follow up on the parent obtaining the information from the hospital (id. at p. 15).

The parent emailed the district on October 24, 2023 to notify it that the student would be discharged soon from the hospital and had been accepted into an "intensive day treatment center" that he would attend for "30 to 45 days" (Parent Ex. Q at p. 17).  Noting the district's prior statements that the student would be "discharged" from the public school, the parent requested that the student be "re-enrolled" at that time as his acceptance into the day treatment center was contingent on his enrollment at the public school (id.).  The secretary replied on the same day, via email, stating that the student had never been discharged, therefore he was still registered at the public school (id. at p. 16).  Later that same day, on October 24, 2023, the parent emailed the district and requested a "reevaluation of [the student's] IEP" (id. at p.18).

On October 30, 2023, the secretary emailed the parent and asked if the student had started at the day treatment center, to which the parent replied on the same day that he had not started yet, as transportation had not been set up yet and the student was still hospitalized (Parent Ex. Q at pp. 19-20).  The hearing record does not contain any email correspondence between the parent and the district after October 30, 2023.

The student attended the day treatment program from November 1, 2023 to December 22, 2023 (see Parent Ex. R ¶¶ 27-29).

On December 20, 2023, the parent sent the district a letter stating her intent to unilaterally place the student at Academics West (see Parent Ex. B).  In the December 2023 notice, the parent indicated that, as the new school year started in September 2023, the student "was asked to leave school due to safety concerns revolving around the fact that he was getting into fights with some peers" and the student again stated that he did not feel safe in school due to bullying (id. at p. 2).  She indicated that the student was hospitalized from September 21 until October 31, 2023, and, upon discharge, was enrolled in an intensive day treatment center "which he w[ould] complete shortly" (id.).  The parent reported that "at no time was [she] contacted by [her] son's school-based support team with a suggestion to review his IEP and make it more supportive," and that it was her understanding that there was no school placement" for the student at that time (id.).  Included with the December 2023 letter was a copy of the private neuropsychological evaluation report from testing administered to the student in May and June 2023 (id.).  The parent also indicated that the medical records from the student's hospitalization would be forwarded to the district and requested that the district review the documents and schedule a CSE meeting as soon as possible (id.).

In addition to the district's general obligation to review the IEP of a student with a disability at least annually, federal and State regulations require the CSE to revise a student's IEP as necessary to address "[i]nformation about the child provided to, or by, the parents" during the course of a reevaluation of the student (34 CFR 300.324[b][1][ii][C]; 8 NYCRR 200.4[f][2][ii]), and State regulations provide that if parents believe that their child's placement is no longer appropriate, they "may refer the student to the [CSE] for review" (8 NYCRR 200.4[e][4]).  Furthermore, in a guidance letter the United States Department of Education indicated that parents may request a CSE meeting at any time and that if the district determines not to grant the request, it must provide the parents with written notice of its refusal, "including an explanation of why the [district] has determined that conducting the meeting is not necessary to ensure the provision of FAPE to the student" (Letter to Anonymous, 112 LRP 52263 [OSEP Mar. 7, 2012]; see 34 CFR 300.503; 8 NYCRR 200.5[a]).

Initially, it should be noted that the district retained its responsibilities to the student even once the student was admitted to the day treatment program in November 2023 (see 8 NYCRR 200.14).  Given that, the district should have remained responsive to any request from the parent that the CSE be reconvened.

As set forth above, during the student's psychiatric hospitalization in October 2023, the parent made two separate requests that the CSE be reconvened.  First, by email dated October 2, 2023, the parent stated:

[u]nfortunately, [the student] will be unable to return to [the public school].  Could you please start the process of activating a new school placement.  I understand that you would need to have an emergency CSE meeting.  Not sure what that involves, but I do know that he is not well enough to return to [the public school]

(Parent Ex. Q at p. 6).  Then, by email dated October 24, 2023, the parent wrote: "[The student] needs a revaluation of his IEP.  I wonder if you could let me know how to move forward with this request" (id. at p. 18).  The district did not respond to the parent with a prior written notice or convene a CSE meeting in response to the parent's request.

State regulation provides that "within 60 school days of the referral for review of the student with a disability, the board of education shall arrange for appropriate special programs and services" (8 NYCRR 200.4[d], [e][i]; see "Special Education in New York State for Children Ages 3–21 A Parent’s Guide," at p. 23 [May 2022] [noting that a "referral for review means the projected date of review as noted on [the student's] IEP or the date of the request for such review by [the parent], [the student's] teacher or another appropriate individual"], available at https://www.nysed.gov/sites/default/files/programs/special-education/a-parents-guide-to-special-education.pdf)).  Here, the parent's October 2023 emails would have triggered the district's 60 school day timeline, which means, taking into account school vacations and days off, by approximately January 2024, the district would have been required to have convened the CSE and had an IEP in place for the student.  Thus, according to State regulation, at the time the parent unilaterally placed the student at Academic West in December 2023, the district's time to arrange for special education for the student had not yet expired (see 8 NYCRR 200.4[b]).

Even assuming the district had committed a procedural violation by failing to convene the CSE, it would only constitute a denial of a FAPE if the procedural violation deprived the student of educational benefits or significantly impeded the parents opportunity to participate in the decision-making process regarding the provision of a FAPE to the student (20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; see Application of a Student with a Disability, Appeal No. 15-099 [finding that the district violated the IDEA by failing to either reconvene the CSE in response to the parents' request or respond with a written notice stating the reasons why the district did not believe a reconvene was necessary and such violation contributed to a denial of FAPE]; see also Letter to Anonymous, 112 LRP 52263 [OSEP Mar. 7, 2012]; 34 CFR 300.503; 8 NYCRR 200.5[a]; Application of a Student with a Disability, Appeal No. 13-172; Application of the Dep't of Educ., Appeal No. 12-128).

Here, while the district should have reconvened the CSE or responded to the parent with a prior written notice stating the reasons why a reconvene was not warranted at that time, the evidence in the hearing record does not reflect that the procedural violation rose to the level of a denial of a FAPE.  At the time these requests were made, the operative March 2023 IEP was still timely and not set to expire until March 30, 2024 (Dist. Ex. 9 at p. 1).  Further,  there is no dispute that the parent participated in the development of that educational plan for the student or that the March 2023 IEP was appropriate for the student at the time it was developed (see Mason v. Carranza, 2023 WL 6201407, at *8 [E.D.N.Y. Sept. 22, 2023] [noting that, even if the district in that matter ignored the parent's request for a reconvene, the prior CSE meeting "had already timely occurred and [the parent] had participated fully at that meeting"]).

Relevant to assessing whether a district's failure to reconvene may rise to the level of a denial of a FAPE is whether new information presented to the district would have warranted a revision to the student's IEP and placement (see MN v. Katonah Lewisboro Sch. Dist., 2020 WL 7496435, at *13 [S.D.N.Y. Dec. 21, 2020]).  With respect to the neuropsychological evaluation conducted in May and June 2023 (see Parent Ex. C), there is no indication in the email correspondence included in the hearing record that the parent requested a reconvene of the CSE for the purpose of reviewing the neuropsychological evaluation or any summary thereof (see generally Parent Ex. Q).  At the impartial hearing, the parent testified that she could not exactly recall when she had provided the evaluation to the district, nor could she say whether she had provided the evaluation during the fall semester (Tr. pp. 220-21), although she later testified that she "believe[d]" that, in September 2023, she "sent a summary of the neuropsych[ological]" to the district (Tr. p. 235).  The IHO noted the parent's testimony that she provided the neuropsychological evaluation to the district prior to December 2023 but also that she could not recall when the evaluation was sent to the district (IHO Decision at p. 8).  Because the parent's "testimony presented as confused," the IHO gave it little weight (id.).  This determination by the IHO amounts to a credibility finding arising from the IHO's assessment of the witness's ability to recall events, and, 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, neither the documentary evidence nor the hearing record in its entirety compels a different conclusion.  The parent's December 20, 2023 letter to the district referenced that the evaluation was enclosed with that letter (see Parent Ex. B at p. 2).  While the letter alludes to the parent having previously provided a summary of the evaluation to the student's public school (id.), there is no indication as to when that occurred or what information was included in the summary of the evaluation.  Accordingly, I do not find that this reference is a basis to disturb the IHO's finding regarding the parent's testimony.

Given the communications in the hearing record and the timing of the events over the course of the 2023-24 school year, it appears that the district was keeping itself apprised of the student's status and had intentions to engage in educational planning should the parent express an intent to return the student to the district.  For example, the hearing record contains several instances in which the district attempted to ascertain the student's condition and educational needs while he was hospitalized (Parent Ex. Q at pp. 7, 12-16).  Further, as noted, the hearing record indicates that the district intended to reconvene the CSE when the student returned to the public school (Tr. pp. 95-96).  Although the district did not immediately reconvene the CSE in response to the parent's requests, the parent's requests were also communicated at a time when the student was in a state of transition and were not accompanied by new information for a CSE to consider if it reconvened.  Further, there was an IEP in place for the student and there is no indication in the hearing record that the student would have been prevented by the district from returning to the public school to receive the programming set forth in the March 2023 IEP.[6]  While I sympathize with the stressful circumstances with which the parent was faced during this time, the evidence in the hearing record does not demonstrate that the district denied the student a FAPE, in this instance, by delaying the holding of a CSE meeting for the student until the student returned to school.  Accordingly, there is insufficient basis presented on appeal to disturb the IHO's determination that the district offered the student a FAPE for the 2023-24 school year.

B. Independent Educational Evaluation

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]).

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]).

As noted above, the IHO found that the parent was not entitled to reimbursement for the independent neuropsychological evaluation because the district had administered a full battery of evaluations to the student that were still timely, and the parent had not expressed disagreement with those assessments (IHO Decision at p. 12).  On appeal, the parent argues that "[t]he failure of the parent to disagree with an evaluation does not end the analysis," as an IEE at public expense may be available if the district failed to comprehensively evaluate the student (Req. for Rev. ¶ 36).  However, the authority cited by the parent does not dispense with the requirement that the parent communicate disagreement with the district's evaluation.  In particular, guidance from the United States Department of Education's Office of Special Education Programs (OSEP) indicates that, if "a parent disagrees with the 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] [emphasis added]; see Letter to Carroll, 68 IDELR 279 [OSEP 2016]).

There is no evidence that the parent communicated disagreement with the district's evaluation of the student due to its failure to assess the student in a particular area or otherwise.  The parent cites a district court decision which found that a parent could express disagreement with a district evaluation and seek funding for an IEE for the first time in a due process complaint notice (see Req. for Rev. ¶ 35, citing Moonsammy v. Banks, 2024 WL 4277521, at *16 (S.D.N.Y. Sept. 23, 2024)); however, there is also authority to the contrary (R. F. v. New York City Dep't of Educ., 2025 WL 2695690, at *12 [S.D.N.Y. Sept. 22, 2025]).  More fatal to the parent's argument in this regard is that the due process complaint notice does not include a statement that the parent disagreed with the district's evaluation of the student (see generally Parent Ex. A).  Rather, the parent alleged that "[b]ased on the fact that the Parent was unsure how to help [the student], she had him privately evaluated by [the private evaluator] in May 2023" and that the results "shed a much brighter light on [the student's] learning profile" (id. at p. 3).

Because the parent did not notify the district of her disagreement with the district's evaluation of the student, the parent is not entitled to reimbursement for the IEE.

VII. Conclusion

Having determined that the district offered the student a FAPE for the 2023-24 school year and that, the parent is not entitled to an IEE at public expense because she did not express disagreement with a district evaluation, the necessary inquiry is at an end.

I have considered the parties' remaining contentions and need not address them in light of my determinations herein.

THE APPEAL IS DISMISSED.

THE CROSS-APPEAL IS DISMISSED.