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FINDINGS OF FACT AND DECISION
Case Number:
Student’s Name:
Date of Birth:
District: Hearing Requested By: Parent Date of Hearing: August 16, 2011
September 27, 2011
October 12, 2011
November 4, 2011
November 18, 2011
December 15, 2011
December 20, 2011 Actual Record Close Date: December 27, 2011 Hearing Officer: Jean Marie Brescia, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 16, 2011
A P P E A R A N C E S: — DOE
Attorney — Student
Parents
DOE Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 27,
2011
A P P E A R A N C E S: — DOE
Attorney — Student
Parents
Department of Education Attorney — DOE
DR., (Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 12, 2011
A P P E A R A N C E S: — DOE
Attorney — Student
Parents
Attorney — DOE
School (Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 4,
2011
A P P E A R A N C E S: — DOE
ESQ., Attorney — Student
Parents
ESQ., Attorney, Department of — DOE
Education — DOE
School, CSE — DOE
(Via Phone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 18,
2011
A P P E A R A N C E S: — DOE
ESQ., Attorney — Student
Parent/Mother — Student
Occupational Therapist, — Student
(Via Telephone) — Student
ESQ., Attorney, Department of — DOE
Education — DOE
School, CSE — DOE
(Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 15,
2011
A P P E A R A N C E S: — DOE
ESQ., Attorney — Student
, PARENT/MOTHER
For the Department of Education: , ESQ., Attorney, Department of Education
NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 20,
2011
A P P E A R A N C E S: — DOE
ESQ., Attorney — Student
, PARENT/MOTHER
, Teacher Asst. , School , For the Department of Education: , ESQ., Attorney, Department of Education
On June 29, 2011, I was designated as impartial hearing officer, pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §1415(f), in the matter of . The Department of Education requested the hearing on June 28 in order to: (1) demonstrate the appropriateness of a evaluation conducted in December 2010 and January 2011; and (2) challenge the parent’s request for independent evaluations, including a neuropsychological evaluation, a evaluation, an evaluation with a “followup” assessment, and an evaluation.
The hearing on the merits was scheduled to commence on July 20. At the time, and unknown to the Impartial Hearing Office, the Department and the hearing officer, the parent was tended to an ill parent. The hearing officer was able to contact the parent through counsel retained in a prior impartial hearing. The parent retained that counsel on August 9 to represent her in this proceeding, and the hearing was rescheduled for August
16. A pre-hearing conference was conducted on that date (trans. 1-67). The hearing on the merits commenced on September 27 and was continued on October 12, November 4, November 18, December 15 and December 20. Appended to the record are the names of the persons who appeared at the hearing and a list of the documents entered into evidence.
The compliance date for the submission of this written decision was extended to September 11 for the parent to return to the United States from caring for an ill parent overseas, for the parent to retain counsel, and for the Department to conduct additional evaluations;[1] to October 11 at the parent’s request in order to serve subpoenas, to November 10 and December 10 at the request of both parties for the Department to present, and for parent’s counsel to cross-examine, extensive testimony on complex clinical issues; and to December 30 at the parent’s request to secure the services of an expert witness (see IHO Ex. I [notice to parties with explanations re: extension]; trans. 827-833). The record closed on December 27 upon the receipt by the hearing officer of the parties’ post-hearing memoranda of law (IHO Exs. II, III).
Background
young man. His disability is classified as . This classification is not in dispute. During the 2010-2011 school year, School, a non-public school in Manhattan. This was his fourth year at the . During the 2011-2012 school year, he is enrolled in a program at The Parent’s Request for an Independent Evaluation and the School District’s Hearing Request
By letter to the CSE dated to June 9, 2011, the parent stated that she disagreed with the most recent evaluation of on the grounds that it was not “comprehensive enough or an accurate representation of him” (Department Ex. 1).2 The parent requested that the Department “fund comprehensive independent evaluations, including his recent and additional follow-up as necessary, as well as a , , and all other evaluations and assessments that are necessary to fully assess ’s needs” (Department Ex. 1 at p. 2).
The Department requested this impartial hearing to demonstrate that the evaluation conducted by Dr. for the Department was appropriate and that “no other independent education evaluations . . . are required or appropriate” (Department Ex. 2 at p. 1). In the hearing request, the Department stated that the evaluation of conducted during the 2010-2011 school year was “part of the three year review process of special education services mandated by State and [f]ederal regulations” (Department Ex.[2] at p. 2). The Department admits that the most recent evaluation was conducted in 2008 (id). The School District’s Case
Dr. testified that she had a doctorate degree in clinical psychology and was a consultant with New York Therapy Placement Services performing evaluations and had a private practice (trans. 72).[3] She also has specialties in and (trans. 74). Dr. evaluated in December 2010 and January 2011 at the after receiving a referral to evaluate him from Placement Services (trans. 77-78; Department Ex. 3).
In her report, Dr. noted that was referred to her “for re-evaluation to ascertain his current level of cognitive/emotional functioning, and determine his current academic needs” and that he “has a history of ” and “ (Department Ex. 3 at p. 1). During the testing, was “ and inconsistently cooperative”—when was “unable to ,” to return to his classroom and uncomfortable even though his Dr. Davis rescheduled the testing for a second date, on which ’s “ , and he was able to complete the testing protocol” (id). During the evaluation, spoke in . During testing tasks, needed repetition and clarification of instructions, prompting and demonstration. He had “difficulty focusing on a task for sustained periods of time without external intervention and prompting” and “ , was impatient, decreased” (Department Ex. 3 at p. 2).
Dr. explained that ’s performance may have been hindered issues: he was . Since he , he had (trans. 87). Dr. stated that she worked with for about a half hour on the first testing date and then rescheduled the evaluation in order to attempt to work with him on another day when he would be “in a better situation” (trans. 88). On the second day of testing, was able to “sit and tolerate” the testing and “was a little bit more attentive” (trans. 89). Dr. explained that if she had tested on different days, the results would not have been “significantly different” because has “some enduring issues” in the developmental, and with respect to his that are not “ ” (trans. 232-233).
Dr. administered the following tests to : the Stanford-Binet Intelligence Scale, 5th ed.; Vineland Adaptive Behavior Scale, 2nd ed.; the Woodcock-Johnson Tests of Academic Achievement; the Beery Test of Visual Motor Integration; an autism behavior checklist; a clinical interview; a parent interview (which was by telephone); and a review of ’s records (trans. 78-79, 145). Dr. was unable to state how long her evaluation took (trans. 80). Dr opined that her battery of tests was sufficient to “tap[] as much information as was capable of giving” her at the time of the evaluation and to provide the Department with information on ’s “current skills and functioning” to prepare an IEP (trans. 83). Dr. selected the Stanford-Binet specifically because it has “a very strong ” that would provide her with “a decent assessment of his overall skills” because she “knew” that would be likely ” (trans. 84). She made some modifications to the testing, which are permitted, to give extra time to respond using his (trans. 85). Dr. did not identify or describe this device.
attained the following scores on the Stanford-Binet: nonverbal IQ, verbal IQ, full-scale IQ The verbal subtest scores were all “ ”; the nonverbal subtest scores ranged from “1” in fluid reasoning and quantitative reasoning to “ in working memory and “ in visual spatial (Department Ex. 3 at p. 2). Dr. noted in her report that “[t]hese scores may represent a minimal estimate of ’s , as his performance may have been compromised due to the intrusion of , issues with , as well as due to a history of . His abilities may be better than currently demonstrated” (Department Ex. 3 at p. 3). The results on the Stanford-Binet “indicated that he does have cognitive delays and he’s functionally within the . . . mildly delayed range” with respect to non-verbal IQ (trans. 86-87). Dr. explained that where her report indicates “standard scores” on the StanfordBinet subtest, the report should indicate “scale[d] scores,” which are based on a mean score of 10 and a standard deviation of 3 (trans. 186). The standard scores are based on a mean score of 100 and a standard deviation of 15 (trans. 186). Any score under 40 would be “extremely delayed” (trans. 197). Scores of 40 to 54 are “moderately impaired or moderately delayed” (trans. 198). Even though scored and the lowest level of “1”, in the extremely delayed range, on the verbal IQ scale scores, he attained a verbal IQ in the “moderately delayed” range (trans. 202-203). Dr. contended that the test was scored correctly and that a lowest verbal IQ score is 43, in the moderately delayed range (trans. 203-205, 210-211). She did not recall whether she scored ’s test by computer or by hand (trans. 225). The report lists the scores J. attained on the Stanford-Binet and describes the percentiles and ranges of those scores. The report does not describe how performed qualitatively on the various testing tasks nor explain what he could or could not do during testing.
’s results on the Woodcock-Johnson indicated that his academic achievement levels were “significantly delayed” (trans. 92). He scored at in all areas of academic achievement, at the kindergarten or below kindergarten level (Department Ex. 3 at p. 4). Again, Dr. noted that ’s abilities might be better than the testing revealed due to .
On the Vineland, which, according to Dr. , was commonly used with students on the , demonstrated delays in adaptive functioning (trans. 96). The Vineland questionnaire was completed by the parent. ’s overall adaptive behavior composite score was , in the first percentile (Department Ex. 3 at p. 5). ’s communication skills scored at , , at the ; and socialization skills, , below the . Dr. noted that the Vineland revealed that was able to , carry out , carry for a limited period of time (Department Ex. 3 at p. 5).
Dr. opined that she did not need to conduct additional testing to properly evaluate to determine his adaptively in order to prepare an IEP (trans. 101, 113). She did not focus on tests of in her evaluation but did note ’s planning, organizational and self-monitoring skills by observing how he approached the testing tasks (trans. 155-156, 236). Dr. did not include recommendations in her evaluation report because she has been instructed by the Department of Education not to include recommendations; recommendations are to be made by the IEP team (trans. 120-121).
Dr. noted that might have performed better on another date; she “cannot control where the child is going to be ,” or what his attention state will be, on any given day (trans. 150).
Dr. did not have any of her raw testing data because she routinely keeps such date for several months and then destroys it by shredding it (trans. 109, 111).
Dr. explained the differences between a and a neuropsychological evaluations. A evaluation is “used to determine educational functioning, adaptive functioning. It’s not really interested in brain behavior” (trans. 168). A adds testing to understand a neurological issue and “determine its impact on the person’s functioning” (trans. 168169).
, a certified school psychologist at the CSE for Region in Manhattan, testified that her duties included assessing students (including students with ), interpreting assessments, conducting classroom observations, participating in IEP meetings and “writ[ing] IEPs” (trans. 312-313). She has a master’s degree in educational psychology (trans. 478). Ms. participated in ’s CSE meetings in 2009, 2010 and 2011 and had observed him in his classroom prior to the 2010 and 2011 meetings (trans. 313, 332; Department Ex. 10). The first 2011 meeting was in March and a final meeting was held in June.
In fall 2010, Ms. sent to the parent an “ARC I” form (Department Ex. 11) which contained a consent for an evaluation of . Ms returned the form to Ms. (trans. 321322). The parent included a letter stating the following: she wished to request “information regarding what evaluations and assessments the CSE will be doing as part of an evaluation. I am giving consent for [ ] to be observed in his classroom and for the CSE to initiate a reevaluation process; however, I would like to be provided with written notice regarding what that process will entail” (Department Ex. 11 at p. 1; trans. 492-493). Ms. did not provide the parent with any written notice about the reevaluation process in response to the parent’s request (trans. 492).
Ms. then requested “new testing” of because his last testing was three years earlier, and she wanted to “get updated information with regard to his cognitive and academic functioning” (trans. 316; see also trans. 518-520). Ms. explained that needed such testing because “[i]t is helpful to have regular assessments of students. In terms of their academic functioning, we like to see if . . . academic progress has been made. And just to give us an update if anything has changed” (trans. 316-317). This testing would constitute ’s “mandated three-year assessments” (trans. 318). Ms. stated that she was the individual responsible for determining the evaluations to be conducted for in this reevaluation (trans. 503).
Ms. considered the evaluations which would be conducted and determined that needed a because she “felt we needed updated cognitive and academic testing” and no other testing was needed since she “knew what to anticipate from the . . . in terms other their reports” (trans. 326-328; Department Ex. 6 [ report]). The also provided her with and reports (trans. 331; Department Ex. 7]). Before the meeting, she reviewed materials and “wrote drafts of certain pages” of the IEP. At the meeting, her role was to review those drafts and discuss and interpret the information set forth in the evaluation (trans. 319).
Dr. evaluation “help[ed] to guide the development of the IEP” at the March meeting “in terms of where he was functioning academically” and “overall in terms of progress” and “helped to clarify matters” in terms of his ” (trans. 339). The report revealed that ’s relative to his verbal skills,” that he was functioning on a , and “where he was relative to his peers” in (trans. 340). This information helped develop an IEP appropriate to meet ’s needs (trans. 340).
Ms. explained that the Stanford-Binet is a well-known measure of (trans. 346347). The Stanford-Binet administered by Dr. to informed the CSE that , since he scored “1” on verbal subtests, had “significant difficulty globally in terms of his verbal functioning.” His had a “wider range of functioning,” with working memory in the and visual spatial functioning in (trans. 347). The Stanford-Binet is a useful instrument for students because it does “ and permit a comparision between a student’s functioning in these areas (trans. 353). The test did not measure ’s in a direct way, but the test administration requires “a certain level of executive functioning in order to just simply respond to the question response format . . . in terms of organization of your ideas and thoughts in order to respond” (trans. 348). The NEPSY is the “most common test” of (trans. 354). Ms. did not order that a NEPSY be administered to because she recognized that his executive functioning would be and it would be pointless to retest a child for whom the personal interactions of the testing situation were difficult when she was able to infer that was impaired (trans. 356-357, 361-362). Furthermore, she could draw conclusions about from her classroom observation, from talking to his teachers, and because are a (trans. 357, 679-680).
Ms. noted that, based upon her observations of , the IQ scores obtained by Dr. are “reasonable” and “fit” (trans. 550). Ms. Fochetta explained that the “floor” score on the Stanford-Binet verbal IQ is trans. 365). Whether a might be more precise was irrelevant for her purposes because the “43” informed her that was globally delayed and provided her with the information she needed to plan “for an educational setting” for him (trans. 365-366). She concluded that Dr. s evaluation provided her with sufficient information to create an IEP for and to “plan for him academically” (trans. 366).
Ms. noted that Dr. had described the difficulties she had testing . This indicated that ’s “actual IQ scores” might be “slightly higher” if his “ ” had not “ ” on the testing dates (trans. 372). Ms. did not believe that “more testing” would have changed the results (trans. 373).
Ms described a as “an assessment of higher ordered thinking and processing skills that impact a student’s functioning ” (trans. 366). Such an evaluation is conducted “to gain more information about specific students in terms of the reasons that they may be having difficulties in school, whether it’s issues with memory or executive functioning or organization” (trans. 366). Ms. opined that a of “would not yield any additional information that would be useful” because it was “already” known that he was significantly and globally delayed (trans. 378-379).
Dr. was the evaluative information the CSE had with respect to ’s adaptive living skills (trans. 575). The results obtained by Dr do not reveal the specific tasks can do. The results do indicate “his functioning relative to the population as a whole” (trans. 576). Going into the IEP meeting, the only information about ’s adaptive functioning was found in Dr report (trans. 748-749).
Ms. testified that the were not part of the Department’s evaluation (trans. 737). report (Department Ex. 6) provided Ms. with information about ’s planning and visual spatial processing as well as information about academic functioning from his teacher (trans. 382-383). The report contained one sentence about ’s fine motor skills, noting that could hold a pencil in a tripod grip and tie his shoelaces (trans. 747-748; Department Ex. 6 at p. 6). The report also contained information about ’s functioning in the classroom, specifically that he was available for learning when he was in a “regulated state” (trans. 383). Ms. testified that in the past she had expressed reservations about Rebecca School reports; however, she was able to rely upon them in this instance because they confirmed what she already knew about —that he needed occupational therapy—and there was no disagreement at the meeting with respect to frequency, duration and goals (trans. 534-535, 542). Ms. contended that she used the psychoeducational evaluation to ascertain ’s (trans. 542).
Ms. received the parent’s letter to the CSE stating that she disagreed with the evaluations (trans. 411; Department Ex. 1). Ms. “contracted out” an occupational therapy evaluation and a as a result of the parent’s request and because had not been “formally tested for .” even though there was “a wealth of information in terms of progress reports and goals from ” (trans. 413). Ms. did not believe that she needed such testing “but the parent has the right to request it,” and Ms. “honored her request” (trans. 413). The parent had also submitted to Ms. an independent occupational therapy evaluation and a May 2011 report prior to the June 2011 reconvened CSE meeting (trans. 429-430). This occupational therapy evaluation recommends that therapy be provided to in a sensory gym. Since Ms had never seen such a recommendation, she wanted to seek out “another perspective of an occupational therapist” in terms of a “second opinion” (trans. 431-433). The evaluation Ms. ordered did not indicate that ’s occupational therapy needed to be provided in a sensory gym but did recommend that he receive occupational therapy five days per week for 40 minutes per session (trans. 435; Department Ex. 8). The updated speech and language evaluation ordered by Ms. confirmed that needed daily (trans. 438; Department Ex. 9).
When Ms. received the parent’s June 2011 letter, she did not provide the parent with information about where to obtain an independent educational evaluation (trans. 456, 459).
Ms. has observed engage in the , throwing things, grabbing at adults in a rough and inappropriate manner, becoming and being unable tasks, and having to be removed from the classroom (trans. 556-557).
The Department did not conduct an assistive technology evaluation of because the parent did not submit an “assistive referral form” (trans. 339). Ms asserted that she provided the form to the parent at the CSE meeting but the parent did not return it to her and that therefore, Ms. was unable to forward the form the Department’s assistive technology team to conduct such an evaluation (trans. 339-440, 543-544).
Ms. denied that the Department had a policy that individuals conducting should not make recommendations. However, Ms stated that is was her opinion that recommendations should be made by the CSE rather than by an individual (trans. 443).
The Department did not conduct a vocational assessment of in connection with the reevaluation (trans. 594). had not yet turned at the time of the reevaluation (trans. 595). The Department did not conduct an FBA of even though Ms. acknowledged that his behavior impeded his learning (trans. 595).[4] The Parent’s Case The parent testified that when attended the Rebecca School during the 20102011 school year, he injured himself, destroyed school property, and would “press” his body against staff members (trans. 842-844). In November 2010, Dr. telephoned the parent and asked her “a lot of questions about ’s social history” and told her that she would forward her the Vineland questionnaire (trans. 844-845). The parent did not receive the questionnaire from Dr. so she asked personnel for the questionnaire and completed it before was scheduled to be seen by Dr. (trans. 846-847). She provided the completed questionnaire to Dr. on the morning of December 9 (the date of the evaluation). Dr. indicated that she did not have ’s social history and that she “must have written it on somebody else’s paperwork” (trans. 847). Dr. provided the paperwork for a social history, and the parent completed the forms. The parent could hear during the evaluation. He was with Dr. for 15 to 20 minutes. Dr. was no longer at the school when the parent finished Dr. s social history forms, so the parent provided them to school staff to forward to Dr (trans. 848). The classroom teacher informed the parent that on the second day of testing, was gone from the classroom for approximately one hour for the evaluation (trans. 851). The paraprofessional who was with during the testing session informed the parent that was in the testing room with Dr. for 30 to 35 minutes (trans. 852, 909).
, the teaching assistant employed by the to work in ’s classroom during the 2010-2011 school year, testified that he accompanied to his two testing sessions with Dr. (trans. 950). The first session lasted 15 minutes because was upset because he did not know that he would be leaving his classroom for testing. The second session lasted 30 to 35 minutes (trans. 951-952).
The parent denied that she had signed any written consents for Dr. to evaluate (trans. 850).
According to the parent, . He usually speaks in , but on occasion does use to express what train he wants to travel on (trans. 856, 913, 927). is independent with respect to (trans. 858-863). He assists his father with cleaning and repair tasks in the apartment building at which his father is the superintendent. He can vacuum and wash windows independently and use power tools with supervision (trans. 863-864). He is able to cross the street but not travel by public transportation on his own (trans. 864).
had a device during the 2010-2011 school year, but he was not able to use it and it kept breaking (trans. 866).
The parent described ’s during the 2010-2011 school year loud (trans. 872). He also ” (trans. 873).
The parent wrote the letter to the CSE requesting the independent educational evaluation on her own and without assistance from anyone (trans. 920).
, the program director of the , testified that school personnel schedule classroom observations by Department personnel at dates and times requested by the Department (trans. 963-964).[5]
Dr. testified that she was a licensed psychologist and had a doctoral degree in clinical psychology and advanced training in (trans. 1009-10). She has a private practice in which she conducts of children and young adults, including individuals with and engages in (trans. 1010-14). She is also teaches Ph.D. students in clinical psychology at Adelphi University and has taught at New York University. Prior to her testimony, she reviewed evaluations of , (trans. 1018-19).
Dr. explained that a examines intellectual, academic and social/emotional abilities and takes into account prior evaluations and information from teachers (trans. 1016). A goes further to consider “brain behavior relationships” and assesses memory, executive functioning and language to “integrate[] all of the information so that there’s a complete picture of why a child is having difficulty in a [partic]ular area, and what the child’s strengths and weaknesses are, and what kind of academic planning should be made for this child” (trans. 1017-18).
Dr. reviewed Dr. s evaluation. She found the evaluation “problematic” for the following reasons: Dr. did not answer the “referral questions,” which were to determine ’s current academic needs, because she did not determine what was capable of doing and provided only summary scores; Dr. did not describe the testing task demands nor what actually did nor how she modified the test procedures to accommodate him; Dr. did not maintain the raw testing data for the requisite period of time (according to Dr. Solomon the required period is six years or until turned 22); Dr. Davis did not provide information about classroom performance and did not review information about ’s history; Dr. asserted that she conducted a clinical interview and a mental status exam but did not appear to have done so; and Dr. did not provide any recommendations (trans. 1028-31). Furthermore, Dr. explained that low subtest scores on the Stanford-Binet can result from a variety of student responses: refusal to engage in a testing task, lack of focus, a wrong answer, or a right answer produced outside the time limit (trans. 1034-35). Dr. explained that the Stanford-Binet manual specifies that an evaluator detail what the child did during testing tasks and not report only the scores (trans. 1035). Dr. found similar faults with Dr. ’s administration of the Vineland. Dr. did not provide details about what was able and not able to do—providing scores alone “doesn’t help you understand what an individual is able to do” (trans. 1041). Dr. opined that Dr. administration of the Woodcock-Johnson provided “not very useful information” (trans. 1077).
Dr. opined that it would not be appropriate to administer formal neuropsychological testing to because such testing starts at “ (trans. 1036-37). She would, however, test his memory and with informal measures and then describe his planning abilities and the circumstances under which he was able to regulate himself (trans. 1037-1038). Furthermore, in light of ’s additional testing with respect to nonverbal reasoning and receptive language was indicated (trans. 1022-24).
Dr. charges between $3,800.00 and $4,800.00 to conduct a neuropsychological evaluation (trans. 1019). If she were to evaluate , she would meet with him in order for to familiarize himself with her, document the “details” of what he was able to do “because formal testing misses some kinds of things that children who are so lowfunctioning in intellectual ability can do. So it’s very important to be very specific about what they can and can’t do within each formal sub-task” (trans. 1020). Furthermore, noted Dr. , it is “important to modify what you do with children like , so that they’re able to be more cooperative, and this usually includes talking to people who know , like teachers and moms to find out what would help this child to be cooperative during testing” (trans. 1020-21). In particular, with , Dr. would observe him at school and at home, assess his adaptive functioning, assess his and receptive vocabulary, assess his motor ability, inquire into his reading abilities, and review his records and developmental history (trans. 1021-23). ’s was particularly important to develop a plan for his independent living (trans. 1025). Dr. would test during multiple short sessions and provide rewards for him in order to address his and to get the best performance out of him (trans. 1026-27, 1095).
testified that she was a licensed occupational therapist. She was also certified in the theory and practice of sensory integration. She was employed at , a clinic approved by the Department to provide and (trans. 825). She conducted an of in March 2011 (trans. 805; Parent’s Ex. A). During the evaluation, was able to attend to testing tasks when he was at a table in a small room but had difficulties during tasks in the large gym. The gym was a more distracting environment, was freer to move around, and he had difficulties with some of the gross motor tasks (trans. 815-816). Ms. Processing Measure (Home Form). She also interviewed the parent and observed in the gym. sought out “very intense amounts of had difficulties with (he “always seems to enjoy ”), demonstrated lack of processing (Parent Ex. A at p. 4). Ms. Pagan recommended that receive “in a with specialized equipment to focus on teaching him how to regulate throughout the day in order to function appropriately in school and the community” (Parent Ex. A at p. 5).
Ms. charged the parent $700.00 for this evaluation (trans. 823).
Findings of Fact and Decision
The central purposes of the IDEA are to ensure: (1) that students with disabilities have available to them a free appropriate public education 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) that the rights of students with disabilities and their parents are protected. 20 U.S.C. §1400(d)(1)(A); Schaffer v. Weast, 546 U.S. 49, 51 (2005); Board of Education v. Rowley, 458 U.S. 176, 179-181 (1982). A free appropriate public education includes special education and related services designed to meet the student’s individual needs, provided in conformity with a written IEP. See 20 U.S.C. §1401(9); 20 U.S.C. §1414(d).
A recommended special educational program must be reasonably calculated to allow the child to receive an educational benefit and be the least restrictive environment for the child. Board of Education Hendrick Hudson S.D. v. Rowley, 458 U.S. 176 (1982). A school district fulfills its obligations under the IDEA when it provides a child an IEP that is “’likely to produce progress, not regression” and that affords the child the opportunity for more than “mere ‘trivial advancement’”—in short, likely to provide some “’meaningful’” benefit. Application of a Child with a Disability, Appeal No. 06-121 quoting Cerra v. Pawling Central School District, 427 F.3d 186, 195 (2d Cir. 2005) and Mrs. B. v. Milford Board of Education, 103 F.3d 1114, 1120 (2d Cir. 1997)]. A school district thus satisfies this standard “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.” Rowley, 458 U.S. at 203. An appropriate educational program “begins with an IEP which accurately reflects the results of evaluations to identify the student’s needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services.” Application of a Child with a Disability, Appeal No. 07-010.
In order to effectuate the purposes of the IDEA, the statute places an affirmative obligation upon state and local educational agencies, such as school districts, to identify, locate and evaluate all children with disabilities residing in the state. 20 U.S.C §1412(a)(3)(A); 34 C.F.R. §300.111(a); 8 N.Y.C.R.R. 200.2(a); Handberry v. Thompson, 219 F. Supp. 2d 525, 540 (S.D.N.Y. 2002), aff’d, 436 F.3d 52 (2nd Cir. 2006). The regulations relevant to this proceeding state that: “[i]f the parent disagrees with an evaluation obtained the school district, the parent has a right to obtain an independent educational evaluation at public expense.” 8 N.Y.C.R.R. §200.5(g)(1). In addition, if a parent requests an independent educational evaluation at public expense, “the school district must, without unnecessary delay, either ensure that an independent education evaluation is provided at public expense” or initiate an impartial hearing “to show that its evaluation is appropriate, or that the evaluation obtained by the parent does not meet the school district criteria.”[8] N.Y.C.R.R. §200.5(g)(1)(iv); see also Pajaro Valley Unified School District v. L.S., 47 IDELR 12 (N.D. Cal. Dec. 15, 2006); Application of the Board of Education, Appeal No. 11-122 at pp. 16-17. If the hearing officer finds that a school district’s evaluation is appropriate or that the evaluation obtained by the parent did not meet school district criteria, a parent may not receive reimbursement for that evaluation. individual student . . . as may be necessary to determine whether a student has a disability and the extent of his/her special education needs.” 8 N.Y.C.R.R. §200.1(aa). The purpose of an individual evaluation is “to gather relevant functional, developmental and academic information about the student that may assist in determining . . . the content of the student’s [IEP], including information related to enabling the student to participate and progress in the general education curriculum.” 8 N.Y.C.R.R. §200.4(b)(1). A reevaluation of a student with a disability must “be sufficient to determine the student’s individual needs, educational progress and achievement, the student’s ability to participate in instructional programs in regular education and the student’s continuing eligibility for special education.” 8 N.Y.C.R.R. §200.4(b)(4). A reevaluation must also include data to determine the student’s present levels of academic achievement and related developmental needs, whether the student continues to needs special education, and whether the student needs additions or modifications to special education services. 8 N.Y.C.R.R. §200.4(b)(5)(ii).
The New York State regulations carefully spell out the requirements for evaluations of students with disabilities. A CSE is required to “arrange for an appropriate reevaluation of a student . . . at least once every three years.” 8 N.Y.C.R.R. §200.4(b)(4). This reevaluation must “be conducted by a multidisciplinary team or group of persons, including at least one teacher or other specialist with knowledge in the area of the student’s disability.” Id. The CSE must address the results of the evaluation in a meeting to review the student’s IEP. Id. The purpose of the entire evaluation process is to enable the CSE to create an appropriate IEP for the student. A.R. v. Norwalk Board of Education, 183 F. Supp. 2d at 549; Application of a Student with a Disability, Appeal No. 10-033 at pp. 30-32.
The reevaluation process includes a review by “a group that includes the committee on special education, and other qualified professionals, as appropriate” of “existing evaluation data on the student including evaluations and information provided by the parents of the student, current classroom-based assessments, local or State assessments, classroom-based observations, and observations by teachers and related services providers.” 8 N.Y.C.R.R. §200.4(b)(5)(i). This group may conduct such a review without a meeting. Id. On the basis of such a review, “and input from the student’s parents,” the CSE and the other professionals, as “shall identify what additional data, if any, are needed to determine:”
(a) whether the student has a disability . . . or, in the case of a reevaluation of a student, whether the student continues to have such a disability;
(b) the present levels of academic achievement and related developmental needs of the student; including the four areas listed in section 200.1(ww)(3)(i) of this Part;
(c) whether the student . . . continues to need special education; and
(d) whether any additions or modifications to the special education services are needed to enable the student to meet the measurable annual goals set out in the IEP (8 N.Y.C.R.R. §200.4(b)(5)(ii).
Section 200.1(ww)(3)(i) describes the four areas of individual needs into which the CSE must inquire:
(a) academic achievement, functional performance and learning characteristics which shall mean the levels of knowledge and development in subject and skill areas, including activities of daily living, level of intellectual functioning, adaptive behavior, expected rate of progress in acquiring skills and information, and learning style;
(b) social development which shall mean the degree and quality of the student's relationships with peers and adults, feelings about self, and social adjustment to school and community environments;
(c) physical development which shall mean the degree or quality of the student's motor and sensory development, health, vitality, and physical skills or limitations which pertain to the learning process; and
(d) management needs which shall mean the nature of and degree to which environmental modifications and human or material resources are required to enable the student to benefit from instruction . . . . (8 N.Y.C.R.R.
§200.1(ww)(3)(iii)(emphasis added).
School districts are required to “administer tests and other evaluation materials as may be needed to produce the data” described in 8 N.Y.C.R.R. §200.4(b)(5)(ii) and §200.1(ww)(3)(i).
All assessments and evaluations must be administered “in the form most likely to yield accurate information on what the student knows and can do academically, developmentally and functionally, unless it is clearly not feasible to so provide or administer.” 8 N.Y.C.R.R. §200.4(b)(6)(i)(a). Furthermore, “if an assessment is not conducted under standard conditions, a description of the extent to which it varied from standard conditions (e.g., the qualifications of the person administering the test, or the method of test administration) must be included in the evaluation report.” 8 N.Y.C.R.R. §200.4(b)(6)(ii). And in particular, “assessments and other evaluation materials [must] include those tailored to assess specific areas of educational need and not merely those which are designed to provide a general intelligence quotient.” 8 N.Y.C.R.R. §200.4(b)(6)(iii). Students must be “assessed in all areas related to the suspected disability, including, where appropriate, health, vision, hearing, social and emotional status, general intelligence, academic performance, vocational skills, communicative status and motor abilities” and the evaluation must be “sufficiently comprehensive to identify all of the student's special education needs, whether or not commonly linked to the disability category in which the student has been identified.” 8 N.Y.C.R.R. §200.4(b)(6)(vii) & (ix).
Dr. falls far short of the requirements set forth in the regulations. Dr. ’s tells us the following about : This does not constitute sufficient information to create an educational plan for . Furthermore, “just knowing,” as Ms. did, that had because he was . The tenor of the testimony of the Department’s witnesses and the Department’s argument is as follows: because , he is not entitled to a complete and thorough assessment of his special educational needs—what good would more information accomplish in planning ’s educational program since “we” already know that he is ? In other words, that it is not worth the time to explain what he can and cannot do (beyond the barest of summaries). This is not acceptable. Such testimony and such arguments directly contradict the purposes of the IDEA.
The Department’s argument seems to be that the other “evaluative material” before the CSE corrected deficiencies in Dr. s evaluation, such as the lack of specificity and detail with regard to communication skills, social skills, progress, executive functioning and management needs (Department’s Closing Brief, Department Ex. 12 at p. 13). The Department argues, throughout its Closing Brief, that Dr. ’s evaluation was “an adequate baseline of the student’s overall functioning to be used in conjunction with the other materials and inputs obtained, such as the Disciplinary Reports (sic), classroom observation and any teacher and parental input that would be obtained at the IEP meeting, to re-evaluate the student” and “with specifics of functioning to be filled in by other sources” (Department’s Closing Brief, Department Ex. 12 at pp. 4, 5). Not only does this argument misunderstand the requirements for an evaluation but it also misstates the facts of this case—all the necessary and important “specifics” about were not included in what the Department argues constitutes the evaluation process.
First, an IEP meeting not an evaluation—it is a venue to discuss evaluations. As a result, the Department cannot look to teacher and parental input at ’s CSE meetings to cure any deficiencies in the evaluation process. This leaves us with the following components to consider to determine the adequacy of the Department’s evaluation of : Dr. ’s evaluation, Ms. ’s classroom observation and the reports. With respect to the reports, it is important to note that they certainly provide insights and details about ’s functioning in school and are necessary and important material for the CSE to consider. But these reports are not evaluations because they are not “procedures, tests or assessments used selectively with an individual student” as required by Section 200.1(aa). In any event, I will consider the reports as a component of the Department’s evaluation process of .
Even taking the above material (Dr. s evaluation, Ms. ’s classroom observation and the reports) together, the Department is unable to establish that the reevaluation of was appropriate. The following material necessary “to determine [ ’s] individual needs, educational progress and achievement” (§200.4(b)(4)) and his “developmental needs” (§200.4(b)(5)(ii)) was missing from the reevaluation.
1. The reevaluation did not provide sufficient information with respect to ’s levels of abilities and development in activities of daily living and adaptive behavior, as required by 8 N.Y.C.R.R. §200.4(b)(5)(ii) and 8 N.Y.C.R.R. §200.1(ww)(3)(i)(a). Ms. admitted that Dr. s Vineland results were the only information the CSE had with respect to ’s adaptive functioning. Dr. does not reveal in her report the specific tasks which could complete independently. Such information is not sufficient for educational planning for a child like because developing adaptive functioning is key to his attaining any measure whatsoever of independence and is an important component of his education plan. To base educational planning for on the minimal information set forth by Dr. is insufficient, and, by itself, renders the Department’s evaluation of inappropriate, entitling the parent to an independent evaluation.
2. The reevaluation did not provide sufficient information with respect to ’s levels of intellectual functioning, as required by 8 N.Y.C.R.R. §200.4(b)(5)(ii) and 8 N.Y.C.R.R. §200.1(ww)(3)(1)(a). Dr. ’s report did not provide this type of information because it set forth mainly summary scores with respect to ’s intellectual functioning. It needed to provide information about what could and could not do on the various testing tasks and should have explained why he attained subtest scores of “1” on a number of the Stanford-Binet subtests—did he refuse to attempt or refuse to complete a testing task or was he simply unable to perform the testing task? This type of information is important to understand for a student such as in order to understand the extent of his delays and the extent of any areas of strengths. While Dr. described what the Stanford-Binet testing tasks sought to test and what some of the tasks consisted of, she did not describe what did on those testing tasks. In addition, the discrepancy between the results of ’s and his should have been a tip-off that more exploration of his cognitive abilities was needed.6 Furthermore, Dr. ’s report did not assess or describe ’s . It is not acceptable to say that he is autistic therefore he will have delayed executive functioning and that therefore it does not need to be tested.
Ms. tried to “save” Dr. ’s evaluation by stating that she knew she would be receiving the reports. Certainly the reports provide information about ’s functioning at school (in particular ); but they are not “evaluations” and certainly not “ ” and, as a result, do not constitute measures of . An individual is “a process by which a New York State-certified school psychologist or licensed psychologist uses, to the extent deemed necessary for purposes of educational planning, a variety of psychological and I credit Dr. ’s testimony that ’s memory, abilities should have been explored to a greater degree. educational techniques and examinations . . . to study and describe a student's developmental, learning, behavioral and other personality characteristics.” 8 N.Y.C.R.R. §200.1(bb). Dr. ’s evaluation should have been this type of report for use by the CSE in preparing ’s IEP.
3. The reevaluation materials did not adequately inquire into ’s social development, as required by 8 N.Y.C.R.R. §200.4(b)(5)(ii) and 8 N.Y.C.R.R. §200.1(ww)(3)(i)(b). While the classroom observation and report describe ’s relationships with peers and adults, they do not explore his feelings about himself or his social adjustment in his community. And neither did Dr. (other than to observe that ). Dr. noted that she performed a exam and a clinical interview. However, she did not describe how she conducted such an exam or interview, or whom she interviewed. Dr provides on the last page of her report that is not depressed or anxious and has difficulties with Some of these conclusions were clearly drawn from ’s behavior during the testing process, but Dr. did not explain how she arrived at this range of conclusions. Furthermore, she did not appear to explore community functioning, which is extremely important for , who will have to learn to function in his community if he is to develop any measure of independence.
4. The reevaluation materials did not adequately inquire into ’s physical development, including his , as required by 8 N.Y.C.R.R. §200.4(b)(5)(ii) and 8 N.Y.C.R.R. §200.1(ww)(3)(i)(c). There was not an occupational therapy evaluation (see below). Dr. provided some conclusory statements about ’s ability to regulate himself. ’s described ’s functioning during and during the school day. However, testing and assessment was not available.7
5. As Dr. pointed out, Dr. did not prepare her report in a manner that described what could and could not do. This contravenes 8 N.Y.C.R.R. §200.4(b)(6)(i)(a), which requires that evaluations be administered to “yield accurate information on what the student knows and can do academically, developmentally and functionally, unless it is clearly not feasible to so provide or administer.” Dr. testified that she was, in fact, able
7 There was no evidence as to whether or not the reevaluation included a medical evaluation. Since the parent did not address this issue in her letter to the CSE requesting the independent evaluation, and since neither party raised this issue during the hearing, I do not address it. to administer standardized, formal testing to , the Stanford-Binet and the Woodcock- . Therefore, she should have described what could and could not do, rather than providing only summary scores.
6. Dr. Davis did not adequately explain in her report how her testing “varied from standard conditions,” as required by 8 N.Y.C.R.R. §200.4(b)(6)(ii). Her testimony provided some insight into her testing modifications, but she did not detail this information in her report—and since she did not attend the CSE meeting, this information was not available for educational planning for .
This decision takes no position with respect to the length of time of Dr. ’s testing or the number of testing sessions Dr. conducted with (see Department’s Closing Brief, Department Ex. 12 at pp. 13-14; Parent’s Closing Statement, Parent’s Ex. B at p. ). The evidence presented at the hearing was insufficient to provide a basis for such a determination because there was no testimony explaining how long (in terms of a range of hours and minutes) such testing of a student like should take. While there was testimony with respect to the need to test over a number of sessions, I cannot bind the Department to a particular number of sessions of testing. This is a determination within the purview of the psychologist administering the evaluation and one made “on the spot” while engaged in testing a child.
The Department admits that the most recent evaluation of prior to the first CSE meeting was conducted in 2008 (Department Ex. 2 at p. 2). The evaluative material with respect to ’s motor skills was slim at the first CSE meeting. There was a sentence in the report that stated that . This is insufficient information upon which to base educational planning for in the area of Furthermore, Dr. did not assess ’s needs. As Ms. explained, she did not request an occupational therapy evaluation of until after she received Ms. ’s evaluation from the parent. As a result, the Department is unable to establish that its evaluation of (prior to the time the parent obtained the evaluation and objected in writing to the Department’s evaluation) complied with §200.1(ww)(3)(i)(c)(“motor and sensory development”), and the parent is entitled to reimbursement for Ms. ’s evaluation.
The Department is entirely correct with respect to the parent’s request for an assistive technology evaluation (Department’s Closing Brief, Department Ex. 12 at pp. 19-20). Should the parent desire such an evaluation, the parent should complete and return to the CSE the required forms.
The Department may have committed numerous procedural violations in the course of ’s triennial evaluation, such as failure to involve the parent in the decisionmaking process concerning the evaluation process, failure to provide prior written notice, and failure to provide information with respect to independent evaluations (see Parent’s Closing Statement, Parent’s Ex. B at pp. 2-5). Failure to obtain consent was not one of the Department’s delinquencies. Ms. sent a letter to the parent asking if she consented to the evaluation; the parent wrote a carefully worded letter stating that she did consent to the evaluation. As a result, I find that the parent consented to the Department’s evaluation. With respect to any other procedural violations, they are outside the scope of this hearing. This hearing is about the substantive appropriateness of the Department’s evaluation of .
A school district may set criteria for independent educational evaluations. These criteria, “including the location of the evaluation and the qualifications of the examiner, shall be the same as the criteria which the school district uses when it initiates an evaluation, to the extent that those criteria are consistent with the parent’s right to an independent educational evaluation.” 8 N.Y.C.R.R. §200.5(g)(1)(ii); see also 8 N.Y.C.R.R. §200.1(z)(definition of independent educational evaluation). The Department offered no evidence of its criteria for independent evaluations. As a result, the only evidence before me with respect to costs of evaluations is the information in Ms. ’s and Dr. ’s testimony concerning what they charge for evaluations.
The Department did not conduct a functional behavioral assessment (“FBA”) of even though he manifested behaviors that interfered with his learning. The parent did not request an FBA for in her request for evaluation. As a result, the Department could not be expected to challenge such a request in this hearing. However, a hearing officer has independent authority to order school districts to conduct evaluations. 8 N.Y.C.R.R. §§200.5(g)(2), 200.5(j)(3)(viii). The Department is simply wrong in asserting that the hearing officer does not have jurisdiction to order evaluations because the hearing request was filed by the Department (see Department’s Closing Brief, Department Ex. 12 at p. 3 fn.1). I am ordering this evaluation to be conducted at this time by the Department (if it has not already done so). I make no findings with respect to the appropriateness of the CSE’s determinations, or the IEPs created, in spring 2011 as a result of the lack of any
FBA. Those issues are not before me in this case.
Similarly, the Department did not conduct any vocational assessment of . Section 200.4(b)(6)(viii) requires CSEs to conduct for “students age 12 . . . an assessment that includes a review of school records and teacher assessments, and parent and student interviews to determine vocational skills, aptitudes and interests.” The parent did not request such an assessment. However, as with the FBA, a hearing officer has jurisdiction to require a school district to perform an evaluation. Since is over twelve years of age, and if a vocational assessment has not been conducted for him, the Department should conduct, or cause to be conducted, such an assessment at this time. Similarly, I make no findings with respect to the appropriateness of the CSE’s determinations, or the IEPs created, in spring 2011 as a result of the lack of any vocational assessment. Those issues are not before me in this case.
Therefore, for all the above reasons, it is ordered that:
1. The Department of Education shall reimburse the parent in an amount not to exceed $700.00 for the evaluation of conducted by Ms. . Reimbursement shall be made to the parent within fifteen business days of the parent providing the Department with proof payment.
2. The Department of Education shall fund an independent psychological evaluation of performed by a New York State licensed psychologist. This evaluation shall include, in addition to , informal assessments of and memory and specific measures of reasoning and . The Department shall pay no more than $3,800.00 for this evaluation.
3. The Department of Education shall conduct, or cause to be conducted, if it has not already done so, an FBA and a vocational assessment of on or before January 30, 2012. Dated: December 29, 2011
______________________________
JEAN MARIE BRESCIA, ESQ.
Impartial Hearing Officer
PLEASE TAKE NOTICE
Within 35 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.
“The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period.”
(8NYCRR279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.
Directions and sample forms for filing an appeal are included with this decision. Directions and forms can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.
DOCUMENTATION ENTERED INTO THE RECORD
PARENT
A Occupational Therapy Evaluation, 3/10/11, 5 pp.
DEPARTMENT OF EDUCATION
1 Parents' Request for Evaluations- , 6/9/11, 3 pp. 2 Due Process Complaint- , 6/27/11, 4 pp. 3 Psychoeducational Evaluation by Dr. , 12/9/10 and 1/11/11, 6 pp. 4 The Interdisciplinary Report-Various Providers,
5/2011, 14 pp. 5 The Interdisciplinary Report-Various Providers,
12/9/09, 14 pp. 6 The Interdisciplinary Report-Various Providers,
12/2010, 11 pp. 7 Therapy Evaluations- 4/2008, 6 pp. 8 Evaluation- , MA, 8/13/11, 6 pp. 9 Speech-Language Evaluation- , 8/21/11, 8 pp. 10 Classroom Observation- , 12/16/10, 3 pp. 11 Parental Consent, 10/27, 2011, 2 pp.
IMPARTIAL HEARING OFFICER
I Email from Hearing Officer to Counsel, 11/19/11, 1 p.
Footnotes
[1] The Department conducted a evaluation. The parent found this evaluation acceptable, thereby removing the issue of evaluation from this proceeding.
[2] The parent also expressed her disagreement with the recommendations made at a March 2011 CSE meeting. The proceeding concerns only the parent’s request for independent evaluations and the Department’s challenge to that request.
[3] There are numerous gaps and apparent missing words and incomplete phrases in the transcript of this hearing date. Through the Department of Education’s Impartial Hearing Office, I requested that the transcription company review the tapes of this hearing and complete the transcript. This is the Department’s procedure for addressing problems with transcripts (and has been the procedure for many years). I did not receive any response to my inquiry.
[4] Ms. ’s direct examination was unnecessarily protracted because counsel for the Department repeatedly refused to ask proper non-leading direct examination questions despite repeated directions from the hearing officer to ask non-leading questions and despite repeated descriptions of what constitutes a non-leading question and how to ask such a question. Counsel for the Department also insisted upon asking compound and irrelevant questions despite rulings and instructions from the hearing officer to simplify his questions and to remain on track. In addition, the cross-examination of Ms. was unnecessarily protracted because counsel for the parent was argumentative and endeavored to ask irrelevant questions whose purposes seemed to be to obtain “discovery” for other proceedings, despite instructions from the hearing officer to remain on track. A hearing officer cannot present the parties’ cases for them; as a result, I could not conduct the direct and cross-examination of witnesses. I could only instruct counsel to ask proper questions and, after repeated admonitions, foreclose counsel from repeating inappropriate questions and pursuing fruitless lines of inquiry. Unfortunately, counsel for both parties were argumentative throughout the presentation of the parent’s case, again despite repeated instructions from the hearing officer to stop and to remain on track.
[5] The parent offered in evidence transcripts of Ms. ’s testimony in prior proceedings on the grounds that the statements constituted prior inconsistent testimony which impugned Ms. ’s credibility (trans. 973). I sustained the Department’s objection to the admissibility of these documents on the grounds that Ms. acknowledged the content of her prior statements and that it was unnecessary to admit the transcripts. To do so would have been redundant and resulted in cumulative material in the record (trans. 983-985). The parent also offered in evidence videotapes of (trans. 988). I sustained the Department’s objection to these videotapes on the grounds that such tapes were redundant and cumulative of the parent’s testimony about ’s functioning outside of school (trans. 995. 998-999). The Department wished to offer the testimony of a witness to rebut Ms. ’s testimony (trans. 1001). I denied this application on the grounds that this was not the proper use of a rebuttal witness and it was within the purview of the hearing officer to make credibility determinations with respect to witnesses’ conflicting testimony (trans. 1005-06).
[8] N.Y.C.R.R. §200.5(g)(v). The Department of Education requested this impartial hearing to challenge the parent’s request for an independent evaluation at public expense. The Department has the burden of proof to demonstrate that its evaluation of was appropriate. A.R. v. Norwalk Board of Education, 183 F. Supp. 2d 534, 549 (D. Conn. 2002). The Department contends, in its hearing request, that Dr. evaluation of was appropriate and that no other evaluations were required or appropriate. The Department concedes that the evaluation at issue was a triennial reevaluation of (Department Ex. 2 at p. 2). An evaluation includes “any procedures, tests or assessments used selectively with an