New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: June 2, 2015

Actual Record Closed Date: June 30, 2015

Hearing Officer: Michal Lambert, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 2, 2015

Esq. Attorney — Student

Parents

Director, — Student

DOE Representative — DOE

INTRODUCTION AND PROCEDURAL HISTORY

By complaint letter dated April 7, 2015 (PE-A), the parent of brought a challenge to the appropriateness of a portion of the 2012-2013 educational program^[1] offered and/or delivered to , a challenge the appropriateness of the 2013-2014 and 2014-2015 educational programs offered and/or delivered to , and a request for relief in the form of updated evaluations, compensatory services and a revised Individualized Education Program (IEP). On the initial hearing date, the Department of Education (DOE) representative acknowledged that the District failed to offer Free and Appropriate Public Education (FAPE) during the entirety of this time period (T: 5). With respect to this issue, the hearing thereafter focused on what the remedy should be for such denial of

FAPE (T: 5-6; T: 15).

The parties agreed that the evaluations of needed to be updated and jointly requested that I issue an Interim Order directing that the DOE conduct updated assessments in the form of an , a and an (T: 14). I thereafter issued an Interim Order dated June 5, 2015 directing that such evaluations be conducted by an appropriate evaluator of the DOE’s choosing within 45 calendar days of the date of such Interim Order (T: 14-15;

IHO-IV). There remained an outstanding issue with respect to the parent’s request for an Independent Educational Evaluation, at least relating to the amount that the DOE was willing to pay for such evaluation (T: 7-12). This issue was not resolved through any agreement between the parties.

THE HEARING EVIDENCE

The DOE rested its case without presenting any evidence (T: 20).^[2] However, the facts of this matter were largely not in dispute. was, at the time of the hearing, a who had attended a at the

(PE-A-1; T: 119-20) in the 2013-2014 and

2014-2015 school years.

The parent called , the Director of the

(“ ”) located on the , as a witness. Ms. testified that she was certified in the State of California in early childhood and elementary education, possessed a Master’s Degree in Music, that she previously worked for three years in California as an elementary teacher (T: 99), taught English to college freshman in

China for 3 years and had been employed in various capacities at since 2001. She had been serving as the Director of for the past 5 years (T: 32). Although she received training with respect to the administration of the testing battery, she had taken no classes on assessments and was unfamiliar with the psychometrics of the tests

(T: 79). Ms. indicated that provided “

(T: 33).

with Disabilities Education Act (IDEA) (T:

33).

was administered the standard battery of tests on January 2, 2015 (T: 37;

T: 100)3. He was then (T: 35). staff

reviewed ’s IEP (PE-C) “so that we could determine what accommodations he was entitled to receive during testing” (T: 35; T: 38). PE-K was identified as a summary report of the findings of PE-M, which was itself identified as the actual testing completed at on January 2, 2015 (T: 38-39). PE-L was identified as the curricular plan that was developed as a result of the testing that was reflected in PE-M and summarized in PE-

K (T: 39). Such curricular plan would be implemented in the event that was

“ ” (T: 39).

Ms. indicated that the various assessments that were included in PE-M

“were created by a variety of psychologists and selected for use at the by the people in the corporate officer in ” (T: 40).

She had been trained in administering and scoring such assessments when she first started

3

Ms. testified that it typically takes approximately

(T: 101-03). The parent testified that the testing took approximately (T: 122-23). at in 2001 (T: 40). She testified that she had administered each of the assessments included in the testing battery over , possibly as many as , during the 13 years that she worked at (T:41). She indicated that there had been updates of the tests throughout the years, but that they were generally cosmetic, with the exception of the (T: 41-42). The assessment cost the parent , exclusive of a . Instruction, if delivered, would cost

(T: 75).

Ms. testified that the measured a student’s (T: 44). Although she did not administer this test to , she spoke with , her colleague who did administer it (T: 45). Based upon this discussion, as well as a review of PE-M-1 through 8, she concluded that his overall performance met expectations for a student of his age (T: 46).

The was described as a test of that consisted of a series of

(T:

47). Once again, Ms. was not the staff member who administered the test or determined the test findings (T: 47-48; PE-M-9). In fact, Ms. acknowledged that she had not administered any of the tests that were administered to on January 2, 2015

(T: 50). The test results from the indicated that was reading at a

(T: 51-52). Ms. provided

little, if any, support for this conclusion other than her own opinion as to the appropriate educational approach for .

was also administered an informal reading inventory (T: 55; PE-M-10-12), which was identified as a non-standardized reading assessment (T: 55). Ms. did not know how old the informal assessment was or how long it had been in use at other than to state that it was in use at when she began in 2001 (T: 56). The test results were fairly vague and not particularly helpful in determining ’s reading levels (see, e.g., PE-K-1), although Ms. opined that such test results “were a closer mirror of what actually happened to in school” than the test results obtained from the , where scored in the

(PE-M-13; T: 58).

Ms. indicated that was administered a assessment, which resulted in ’s generation of a very poor sample (PE-M-15-16; T: 59-61). This assessment was quite limited and neither standardized nor normed, and it was unclear as to what bases were used to characterize the specific aspects of the as

(PE-M-15-16).

Finally, Ms. testified that was administered a t (PE-M-17-57), in which he started and, ultimately, did not complete (see, e.g., PE-M-27-57, reflecting no work, notwithstanding using an additional for the administration of that portion of the assessment) (T: 64).

Ms. testified as to the connection between the test results, described above, and the proposed “ ” (PE-L; T: 66), which she developed without any consultation with other staff (T: 90). In the area of math, she indicated that she took all of the areas on the t that (which included all of the areas that he provided no answers [T: 105-06]) and added them to the skills that they determined were needed for him to She then considered her prior experience in working with other students and determined that it took such prior students an average of

Ms. then

(T: 66-67).

The next section of the “ ” was identified as “ ” and was derived from the results of the (PE-M-10-12) and the (PE-M-13). She started with the assumption that was reading at a

There was no testimony as to specifically what these skills were or how they were identified.

(T: 67-68; PE- L).

The next section of the “ ” was identified as “ ”, which Ms. attempted to define in the course of her testimony (T: 68-69). It was not clear as to what portion of the testing these “ ” of were derived from. However, once again, Ms. started with what she maintained ’s functioning level to be, identified the number of skill levels between that supposed

.

The next section of the “ ” was identified as “ ”. This section was apparently derived from ’s performance on the and the informal reading inventory (T: 69-70). Once again, Ms. , apparently on her own, identified words on that could not pronounce and translated his performance on of both the definition and usage of the word, with the total number of recommended remedial hours being determined by multiplying the number of areas that needed to obtain mastery of by the number of hours that a typical student would take to obtain such mastery, and arriving at a total of (T: 69-70; PE-L).

The next section of the “ ” was “ ”, which apparently was unrelated to the testing done on January 2, 2015 but, rather, was based upon the fact that were important (T: 70-71; T: 110). Ms. assigned to this part of ’s proposed program.

The final section of the “ ” was “ ”. This section was developed based upon the very limited In this area, Ms. identified six areas to be worked on, indicated that would administer an assessment to determine ’s functioning levels in each of these areas, and work (T: 71-72; PE-

L).

Ms. testified that the time period that it would take to complete the proposed

(T: 74).

The hearing evidence demonstrated that, on or about March 17, 2015the Parent requested an independent educational evaluation (PE-W). Specifically, the parent requested that the DOE authorize an independent evaluation at public expense by Dr. at a cost of between (PE-W). The DOE failed to respond to such request (T: 9). At a minimum, no evidence was presented by the DOE that they responded in any way to this request.

THE LEGAL STANDARDS

Pursuant to the IDEA, all children with disabilities are entitled to a “free appropriate public education” (“FAPE”) which must include “special education and related services” tailored to meet the unique needs of the child and be “reasonably calculated to enable the child to receive educational benefits.” B oard of Education of the Hendrick Hudson Central School District v. Rowley, 458 U.S. 176, 207 (1982); (20 U.S.C. § 1400[d][1][A]; Schaffer v. W east, 126 S. Ct. 528, 531 [2005]; Frank G. v. B oard of Education, 459 F.3d 356, 371 [2nd Cir. 2006]). 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 Committee on Special Education (CSE) through the IDEA’s procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; Cerra v. Paw ling Central School District, 427 F.3d 186, 192 [2nd Cir. 2005]). The Second Circuit Court of Appeals in W alczak v. Florida Union Free School District, 142 F.3d 119 (2nd Cir. 1998) held that the IDEA does not articulate any specific level of educational benefits that must be provided through an IEP. The Court citing to the Supreme Court ruling in Rowley reiterated that the IDEA does not require the states to maximize the potential of disabled children, but was meant “more to open the door of public education to handicapped children on appropriate terms than to guarantee any particular level of education once inside” (at pg. 192). The Second Circuit in W alczak also cites to a D.C. Circuit Court decision by now Supreme Court Justice Ruth Bader Ginsburg which held that because “public resources are not infinite,” federal law “does not secure the best education money can buy; it calls upon government, more modestly, to provide an appropriate education for each [disabled] child” (Lunceford v. District of Columbia Bd. of Educ., 745 F.2d 1577, 1583 [D.C. Cir. 1984]). The Third Circuit has held that an appropriate education under the IDEA is one that is “likely to produce progress, not regression” (Cypress-

Fairbank s Indep. Sch. Dist. V . M ichael F., 118 F.3d 245, 248 [3rd Cir. 1997]; cert denied

522 U.S. 1047 [1998]; Cerra, 427 F.3d at 195, quoting W alczak, 142 F.3d at 130 [citations omitted]; see Perricelli v. Carm el Central School District, 2007 WL 465211, at *15). The statute ensures an “appropriate” education, “not one that provides everything that might be thought desirable by loving parents” (W alczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free School District, 873 F.2d 563, 567 [2nd Cir.

1989][citations omitted]; see Grim, 346 F.3d at 379). The IEP must be “reasonably calculated to provide some ‘meaningful’ benefit” (Mrs. B. v. Milford B oard of Education, 103 F.3d 1114, 1120 [2nd Cir. 1997]; see Rowley, 458 U.S. at 192). Objective factors such as the attainment of passing grades and regular advancement from grade to grade are generally accepted indicators of satisfactory progress and one important factor in determining educational benefit (Rowley, 458 U.S. at 207, n.28, 203-04; W alczak, 142 F.3d at 130; V iola v. A rlington Central School District, 414 F. Supp. 2d 366, 382

[S.D.N.Y. 2006]).

The student’s recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. §§ 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.6[a][1]; see W alczak, 142 F.3d at 132). The LRE is defined as “one that, to the greatest extent possible, satisfactorily educates disabled children together with children who are not disabled, in the same school the disabled child would attend if the child were not disabled” (Carlisle A rea Sch. V . Scott P., 62 F.3d 520, 535 [3rd Cir. 1995]). The IDEA mandates that all students with disabilities may only be removed to a more restrictive environment when the nature and severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily (20 U.S.C. 1412[a][5][A]; 34 CFR

300.550[a][2]; Oberti v. Bd. of Educ., 995 F.2d 1204, 1213 [3rd Cir. 1993]; Briggs v. Bd. of Educ., 882 F.2d 688, 691 [2nd Cir. 1989]; Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036, 1044 [5th Cir. 1989]).

“The fact that a student with a disability might make greater academic progress in a special education class may not warrant excluding the student from a regular education program (Oberti v. Borough of Clementon Sch. Dist., 995 F.2d 1204 [3rd Cir. 1993]). The CSE must also consider the unique benefits, academic and otherwise, which a student may receive by remaining in regular classes such as language and role modeling with nondisabled peers” (Greer v. Rome City Sch.

Dist., 950 F.2d 688 [11th Cir. 1991]).

The Second Circuit Court of Appeals adopted the Oberti LRE test in P. v.

Newington B oard of Educ., 546 F.3d 111 (2nd Cir. 2008) requiring the consideration of whether the school has made reasonable efforts to accommodate the child in a regular classroom, the educational benefits to the child with appropriate supplementary aids and services versus a special class and the possible negative effects of the inclusion of the child on the education of the other students in the class.

Federal district courts have upheld the appropriateness of an IEP “given what the CSE knew about [the child] at the time it was developing the … IEP” E.S. v. K atonah-

Lewisboro School District, 742 F.Supp.2d 417 (S.D.N.Y. 2010). In J.R. v. B oard of Education of the City of Rye School D istrict, 345 F.Supp.2d 386 (S.D.N.Y. 2004), the Court held that in reviewing the appropriateness of an IEP that:

“This determination is necessarily prospective in nature; we therefore must not engage in Monday-morning quarterbacking guided by our knowledge of

S.R.’s subsequent progress at Eagle Hill, but rather consider the propriety of the IEP with respect to the likelihood that it would benefit S.R. at the time it was devised. See A ntonaccio, 281 F.Supp.2d at 724 (noting that this issue has not yet been addressed by the Second Circuit and holding that ‘the …IEP…must be evaluated at the time the CSE devised the IEP, on June 15, 1999, and the IHO and SRO erred by regarding any information about [the student’s] education after that date’).” The SRO has consistently considered the IEP “at the time it was formulated” to determine if it was reasonably calculated to enable the student to receive educational benefit

(A pplication of a Student with a Disability , SRO Appeal Nos. 11-154, 09-034, 09-013).

In terms of the available remedies in cases where a district has failed to meet its obligation to offer an educationally disabled child FAPE, IHO’s have substantial discretion. Since P. ex rel. M r. and M rs. P. v. Newington Bd. of Educ., 546 F.3d 111, 122 (2d Cir.2008), the courts of the Second Circuit have ceased to limit eligibility for “compensatory education” to those over 21. In P, the Second Circuit ruled that “compensatory education” can be awarded to an elementary school student. Further, even the “gross violation” requirement, which is applicable to a claim for compensatory education by someone over 21 is not clearly established in this Circuit to be applicable to a student under 21. That standard was not relied upon in P.

In S.A . ex rel. M.A .K. v. New Y ork City D ep't of Educ., 12-CV-435 (RMM)

(MDG), 2014 WL 1311761 (E.D.N.Y. Mar. 30, 2014), the Court held:

The IDEA allows a hearing officer to fashion an “appropriate remedy, and ...

compensatory education is an available option ... to make up for denial of a [FAPE].” P. ex rel. M r. and M rs. P. v. Newington Bd. of Educ., 546 F.3d 111, 122 (2d Cir.2008) (affirming compensatory education award for elementary school student); see also Student X v . New Y ork City D ep't of Educ., No. 07

CV 2316, 2008 WL 4890440, at *24 (E.D.N.Y. Oct. 30, 2008) (awarding compensatory education to student younger than twenty-one). Such an award serves “to compensate a student who was actually educated under an inadequate IEP” and “to catch-up the student to where he should have been absent the denial of a FAPE.” B rennan v. Regional Sch. Dist. No. 1 Bd. of Educ., 531 F.Supp.2d 245, 265 (D.Conn.2008). Before awarding compensatory education for a student older than twenty-one, a court must find a gross violation of the student's right to a FAPE; however, whether the same prerequisite exists to awarding compensatory education for a younger student is an open question. See Student X , 2008 WL 4980440, at *24. P. v.

Newington, 512 F.Supp.2d 89, 112 n. 3 (D.Conn.2007) (“The Court disagrees with the defendant's argument that compensatory education is warranted only if there is a ‘gross' violation of the IDEA. The requirement of a gross violation

... has been applied only to cases involving claimants over the age of 21.”), aff'd, 546 F.3d 111 (2d Cir.2008); but see J.A . v. E. Ramapo Cent. Sch. Dist., 603 F.Supp.2d 684, 690 (S.D.N.Y.2009) (finding that five-year-old student was not entitled to compensatory speech therapy, reasoning that parents failed to show gross violation because child “was not excluded from school for any period of time.”).

Also, Reid ex rel. Reid v. D.C., 401 F.3d 516, 522-26 (D.C. Cir. 2005) seems to stand for the proposition that “compensatory education” can be prospective educational services to compensate for a past deficient program and that a hearing officer, as well as a court, can fashion flexible “compensatory education” relief through the application of “equitable considerations.” Reid is cited by, for example, the Second Circuit in P., 546 F.3d at 123, for the proposition that “[t]he IDEA allows a hearing officer to fashion an appropriate remedy, and we have held compensatory education is an available option under the Act to make up for denial of a free and appropriate public education.”

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The uncontroverted hearing record establishes than was denied FAPE during the period April 7, 2013 through June 30, 2015 and that he is entitled to some form of appropriate relief as a result of such denial. The question is, what relief is appropriate?

Counsel for the parent asserts that the appropriate relief is an Order of compensatory education services in the form of (PE-L). The DOE representative’s position as to what the appropriate relief should be was less clear, other than the fact that it should not include services through .

The hearing evidence established, either through the admission of the DOE or through evidence presented during the Parent’s case-in-chief, that the DOE failed in its obligation to in several significant ways during the period April 7, 2013 through June 30, 2015. These failures included the following:

1. Failing to properly evaluate ;

2. Failing to respond appropriately to the parent’s request for an IEE;

3. Failing to have the evaluations that were conducted reviewed by appropriately- constituted CSE; and

4. Failing to develop appropriate IEPs.

The parent’s specific request for relief is predicated upon the evaluation conducted by (T: 109). Upon carefully considering the evidence that was presented with respect to such evaluation and the recommendations that resulted therefrom, I must reject the Parent’s request that I adopt the plan proposed by and order that the DOE fund it, to include the evaluation upon which the “ ” was apparently based. There are several reasons that warrant this conclusion. First, I find that the hearing evidence failed to establish that the testing battery that was administered to was individually tailored to assess ’s specific strengths and weaknesses, that appropriate standardized, normed assessments were utilized or that such assessments yielded reliable results upon which an entire remediation plan could be developed.

Rather, administered the same battery that they administer to everyone walking in their doors. I find that there was inadequate evidence presented as to the qualifications of the evaluator to administer and/or interpret various elements of the evaluation. In this regard, there were several components of the battery that required the application of subjective educational expertise as to which there was simply an inadequate evidentiary foundation. I further find that the evidence as to Ms. ’s qualifications to interpret the test results and develop a remediation plan was clearly insufficient. In short, there was nothing in her professional background to suggest that she possessed the expertise to develop a remediation plan such as the “ ” was represented as being.

I find that the formula applied by Ms. in developing the “ ” was simplistic and was not supported by the limited information provided by the testing battery administered by another member of the staff. I find that there was insufficient evidence to support one of the core assumptions relied upon by Ms. in developing the “ ” – namely, that the number of hours that an average special education child across a K-12 spectrum would take to obtain mastery of a particular set of skills had anything whatsoever to do with how long it would take for to obtain mastery over such skill (T: 108), even if the skill being worked on was appropriate for . There was no evidence presented to suggest that had or considered any other evaluative information or other information relating to ’s various functioning levels, other than the IEP (PE-C) that was simply used to determine what testing accommodations would be appropriate in administering the standard evaluation to him. In this regard, it is interesting to note that failed to implement the testing accommodations set forth in such IEP in administering its own standard assessment (compare PE-C-9, which calls for time and a half on assessments with T: 64, in which Ms. indicated that he was provided with to take a ; T: 106-07). I find that did not have in its possession sufficient information to develop a credible remediation plan for . By way of example, Ms. indicated that she had no specific information regarding ’s

(T: 96) and had no available to it in drafting the “ ” (T: 98).

If not services as recommended by the , what services would be appropriate to address the denial of FAPE during the time period in question?

In this regard, I have examined the various bases upon which the Parent has alleged, and the DOE has acknowledged, that was denied FAPE during this period and have concluded that appropriate compensatory services can be fashioned in a way that is more directly related to the manner in which FAPE was denied. Specifically, I will direct that the DOE provide of compensatory

( ) during the 2015-2016 school year.

Counsel for the parent has, in her post-hearing brief, argued that the DOE should be ordered to defer ’s case to the Central-Based Support team for identification of a non-public school equipped to meet his individual needs in a with a (IHO-IV, at 15).

However, I find that such relief is not supported by the facts elicited during the course of the instant hearing. In fact, the scope of the evidence that was presented during the course of the hearing was quite narrow, focusing largely upon the alleged appropriateness of the proposed services. Such evidence does not support the current need for the more restrictive placement sought by parent. I reject that request as inappropriate.

Finally, the hearing evidence is clear that the DOE failed to respond properly, or at all, to the parent’s March 17, 2015 request for the IEE (PE-W). The law is clear that, if a parent disagrees with a district evaluation, the parent has the right under State and Federal law to request an IEE at public expense. 34 C.F.R. 300.502(b)(1); 8 NYCRR Section 200.5(g). Upon receipt of a request for such an IEE, the district must, without unnecessary delay, either (1) initiate due process to defend the appropriateness of the challenged evaluation, or (2) grant the IEE request (34 CFR 300.502[b][2]; 8 NYCRR Section 200.5[g][1][iv]). The DOE failed to respond in a regulatory-compliant manner to the IEE request submitted by the Parent on March 17, 2015. Specifically, upon receiving what the DOE acknowledges was a request for an IEE at public expense, the DOE neither granted the request nor initiated due process. In fact, the record supports the conclusion that the DOE ignored the request. The well-established remedy under such circumstances is to grant the request for the IEE at public expense. See, e.g., Evans v. Dist. No. 17 of

D ouglas County, 841 F.2d 824 (8th Cir. 1988); Bd. of Educ. of M urphysboro Cmty. Sch.

Dist. v. Ill. St. Bd. of Educ., 41 F.3d 1162 (7th Cir. 1994). I find that remedy to be appropriate in this case.

ORDER

1. The DOE is hereby directed to fund the requested independent evaluation to be conducted by Dr. or such other qualified evaluator selected by the parents in an amount not to exceed . Such funding shall be made within 30 calendar days of the parent presenting the DOE with a copy of that evaluation or through such other means as may be mutually agreed upon by the parties.

2. The CSE shall meet within 15 calendar days following its receipt of the last of the above evaluation and the evaluations that were the subject of my Interim Order and make any recommendations that shall be deemed appropriate based upon the content of such evaluations.

3. The DOE is hereby directed to provide with of compensatory ( ), with such services to be delivered in a manner to be mutually agreed upon between the parties or, if no agreement is reached, as determined by the DOE in an extended school day during the period through June 30, 2016. The DOE is further directed to provide any transportation that may be necessary to enable to access such compensatory services. Dated: August 7, 2015

MICHAEL K. LAMBERT, 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 E RECORD

None

Footnotes

[1] The parties agreed that the parent’s 2012-2013 claims were timely only for the period April 7, 2013 through June 30, 2013 (T: 4-5).

[2] This action, along with a Due Process response that provided virtually no information regarding the DOE’s position as to the issues raised in the complaint letter (PE-B), has made it somewhat difficult to determine the actual issues in dispute. However, unless otherwise indicated herein, I find that the action taken by the DOE in connection with its defense of this matter must result in a finding that they have failed to meet their burden of proof as to all claims for which they possessed the burden of proof. This includes the claims relating to whether the DOE offered FAPE during the time period in question, whether the DOE properly evaluated and responded appropriately to the request for an IEE, and whether the CSE’s that developed the challenged IEPs were properly constituted.