Impartial Hearing Decision

x In the Matter of the Impartial Hearing on Behalf of XX, Petitioner, And

Florida Central School District,

Respondent. x

FINDINGS OF FACT AND DECISION

Impartial Hearing Officer James McKeever, Esq.

Dated: January 10, 2018

Decision

Procedural History:

The parents have previously initiated several due process complaints concerning the 2016-2017 school year (Tr. 80). Specifically, the parent previously alleged that the IEPs developed by the District’s CSE on two separate dates in June of 2016 denied PR a FAPE. By Decision and Order dated December 20, 2016, IHO LLLLL found that PR was denied a FAPE for the 2016-2017 school year and ordered the District to fund the student’s placement at , which is a private school located in (Exhibit 1).

By Decision and Order dated March 10, 2017, the State Review Office (“SRO”) found the student’s placement at BOCES during the summer of 2016 denied the student a FAPE. However, the SRO found that the although the 12-month services that were recommended were not appropriate, the program developed for the student in the District beginning in September 2016, with the additions of a mandated sensory diet and an updated BIP, could have provided the student with a FAPE (Exhibit 2). Consequently, the SRO reversed IHO LLLLL’s Order with respect to the student’s placement at and remanded the matter back to IHO LLLLL in order for the IHO to address the parent’s compensatory educational claim. (Exhibit D-2)

By Decision and order dated October 23, 2017, IHO LLLLL iussed an award of compensatory educational services to the parent, which covered the 2016-2017 school year up to January 2017 (Exhibit T).

On July 7, 2017, the parent filed a Due Process Complaint (“DPC”) alleging that the Florida Central School District (“District”) failed to offer XX a free and appropriate public education (“FAPE”) for the 2016-2017 school year (IHRS Case No. 504737). In this complaint, the parent alleged:

^[1]. That the District failed to appropriately evaluate the student and requested funding for a private neuro-psychological evaluation and QEEG brain mapping by Dr. CCCCC; and

2. That the District failed to provide a “proper” tutor for the student and that the student did not receive any educational services since January 2017.

On or about July 17, 2017, the District filed a motion to dismiss the parent’s DPC asserting that the parent’s DPC was insufficient because it did not contain sufficient facts to identify the alleged problem or sufficient facts to identify the proposed resolution.

By order dated July 21, 2017, the undersigned found that the parents’ DPC complaint was sufficient because it set forth facts relating to the alleged failure of the District to offer XX a FAPE and what the parents were seeking as a resolution to their claims. Additionally, the undersigned noted that although the District alleged that the parents’ requests were also the subject of a prior case, and therefore moot, those alleged issues were beyond the scope of a sufficiency motion. As such, the District’s request for dismissal on sufficiency grounds was denied.

On August 7, 2017, the parent filed a second DPC against the District asserting additional claims regarding the District’s alleged failure to provide FAPE (IHRS Case No. 505770). In this complaint, the parent alleged that the District failed to offer the student an appropriate placement with respect to the following:

1. That the District’s positive behavior intervention plan lacked positive interventions to change the student’s behaviors;

2. That the student was not receiving appropriate ABA therapy;

3. That the District did not properly implemented XX’s pendency program since 9/6/16;

4. The that pendency program was generally inappropriate;

5. That parent counseling was insufficient because it was not provided by the appropriate person and that the training was not referenced on all of the student’s the IEPs;

6. That the sensory diet developed by the District was inappropriate because it was developed by a CODA and because it includes “deep pressure massage,” which is outside the scope of the occupational therapy provider; and

7. That the student’s placement at NNNNN Elementary School was unsafe and that the student should be educated in the home (Tr. 66).

On or about August 13, 2017, the District filed a response to each DPC and denied the parent’s allegations. The District also asserted various affirmative defensives.

By Order dated August 21, 2017, the parents DPCs were consolidated.

On September 11, 2017, the District filed a Cross-Due Process Complaint asserting that each of the challenged evaluations were appropriate and that the parents were not entitled to a neuropsychological evaluation and QEEG brain mapping by CCCCC at the District’s expense (Exhibit IHO-3).

The District’s DPC was consolidated with the parent’s DPC on the record on the first day of hearing.

The parents’ claims before the undersigned are limited to the 2016-2017 school year and specifically does not include the 2017-2018 school year. Additionally, according to the Findings of Fact and Decision of IHO LLLLL, dated October 23, 2017, the parents FAPE claims are limited to January of 2017 to June of 2017.

Extensions of the Compliance date:

Throughout the hearing process, the District made multiple requests to extend the compliance date due to witness availability, preparation for due process and preparation of post-hearing briefs. The Orders of extension were served on all parties as per the Commissioner’s Regulations and are part of the hearing record.

The Record Close date is January 2, 2018.

The current compliance date is January 10, 2018.

Findings of Fact:

The student is an 11-year-old boy classified as at student with “autism” under the Individuals with Disabilities Education Act (“IDEA”). Classification is not at issue (Exhibit 3, 4, 5, Tr. 79).

XX enrolled in District in June of 2012 and entered first grade in September of the 2012-2013 school year (Exhibit 2).

The Student has severe cognitive delays and the most recent intelligence testing revealed a Full Scale IQ of 42 (Exhibit 49, Tr. 79-80, 87-88,121). Academically, student has delays across all subjects and is considered at the “pre-readiness” level with respect to reading and math (Tr.79-80, 124). The student has a few sight words, but he cannot read. The student can distinguish colors, patterns and shapes, but he cannot add or subtract simple numerical equations (Tr. 121). The student speaks in utterances, which are few, and the student is echolalic (Tr. 185, 196 ).

The student also presents with very significant behavioral issues which includes, but is not limited to, flopping on the floor, climbing on furniture and elopement, as well as kicking and/or pushing adults (Exhibits 1,2, 3, 4, 5, Tr. 79, 137).

On June 13, 2016, the District’s Committee on Special Education (“CSE”) developed an IEP for the student, which included a BOCES placement during the summer of 2016 and an in District placement at NNNNN Elementary School, which was to begin in the fall of 2016. The recommended placement was a 6:1:2 class with related services of speech and language therapy, occupational therapy, parent training and counseling services (Exhibit 3, Tr. 81). The IEP also referenced a sensory diet, a Behavioral Intervention Plan (“BIP”) and 1:1 aide (Tr. 164).

ABA services were not included on the IEP (Tr. 980). However, the student began receiving services from a BCBA for two hours a day from late August 2016 up to January 2017 when the parent’s removed the student from school (Tr. 99). The BCBA provided behavioral supports and provided some ABA services with respect to data collection (Tr. 100).

Parent training was provided by the BCBA and the school psychologist (Tr. 105). However, the parent’s only participated in the training on a few occasions (Tr. 103).

A sensory diet was developed a Certified Occupation Therapist (“CODA”), who was supervised by a Licensed Occupational Therapist (Tr. 108). The CODA is also the student’s OT therapist. The parents’ believed that the sensory diet is inappropriate because it was not developed by an OTR (Tr.175).

The sensory diet included a weighted vest and deep pressure massage on the student’s arms and legs. However, medical prescription is not needed for a weighted vest and the deep pressure is not type of massage provided by a massage therapist (Tr. 174).

In November 2016, the student fell at school while climbing and received a “scratch” on his arm (Tr. 179).

The student attended the BOCES placement during the summer of 2016. However, because his behaviors increased, he was suspended several times, which was the subject of the hearing before IHO LLLLL (Exhibit D-1). The BOCES placement did not include behavior services from a BCBA (Tr. 139).

In August 2016, the student received pendency services at the District, which also included behavioral services from a BCBA. During this time the District believed that the student’s behaviors improved. Consequently, the District believed that the student would be successful in the recommended 6:1:2 class at Elementary (Tr. 138).

The parents objected to the June 2016 IEP and to the program at NNNNN Elementary because they believed that the program would not meet the student’s needs. The parents’ also alleged that the proposed program did not exist, which denied the student a FAPE. The parents further objected to the District’s recommended placement because the parents believed that proposed class who include a student with “LLLLL Syndrome,” who, allegedly, screams in a loud piercing voice, which would disturb the student who has hearing sensitivity (Tr. 159).

The 6:1:2 class did not exist at the beginning at the of 2016-2017 school and was not created until the end of 2016-2017 school year because the parents refused to send the student to the proposed class and because the District did not have a sufficient amount of other students who required such a placement (Tr. 98, 194). However, the District was ready, willing and able to create the 6:1:2 class in the event the parents agreed to send the student to the proposed class. The District also confirmed that the class would have been available immediately (Tr. 92, 191, 354, 363, 390). Additionally, the student with “LLLLL Syndrome,” whom the parent objected to being placed in the same class with XX, would not be placed in the 6:1:2 class and the two classes would be in different wings of the building (Tr. 362). The parent objected and invoked pendency.

The student’s pendency placement included one hour of tutoring services at NNNNN Elementary School, as well as speech, OT and counseling services (Tr. 81). Additionally, as per the District’s offer, the parents agreed to the addition behavior supports by a BCBA for two hours per day (Tr. 81).

The student’s tutor at the District under pendency is a special education teacher (Tr. 145). The tutor was not trained in ABA therapy. However, the tutor worked with the BCBA and collected data on the student’s behaviors (Tr. 144-145).

The student’s behaviors improved when he attended the pendency placement in the District (Tr. 138).

In November 2017, the District developed another IEP for the student, which continued the 6:1:2 class at NNNNN Elementary (Exhibit 4).

Beginning in November 2017, the parents requested that the pendency program be provided in home because the parent’s believed that the student was being harmed at school (Exhibit Z, Tr. 520).

In January 2017, the District updated the student’s BIP. IHO LLLLL noted that the BIP was very detailed and comprehensive (Exhibit TT).

On or about January 13, 2017, one of the student’s outside providers wrote a letter claiming that the student told him that he was hurt at school (Exhibit Z, page 28, Tr. 197, 524). Specifically, the author of the letter stated that the student told him: “Don’t make me go to NNNNN. They hurt me there” (Exhibit Z, page 28). However, the letter was not provided to the District until February 7, 2017 (Exhibit Z, page 25-26). The author of the letter did not testified at the hearing (See record generally). Thereafter, the police conducted an investigation and determined that the allegation was unfounded (Tr. 201). Additionally, the District did not credit the student’s alleged assertion because the student cannot speak in full sentences and often repeats what he someone else has said (Tr. 185, 196). The District also noted that the therapist who wrote the letter was subsequently arrested and charged with inappropriately touching one of his clients (Tr. 185).

In January 2017, the parents withdrew the student from school because they believed that that student was being harmed at school and they objected to Ms.

serving as the student’s tutor (Tr. 83). The parents’ also claimed that the District staff was using unnecessary restraints on the student when they transported the student to and from the school bus (Exhibit Z, 520, 524).

The parents submitted a letter from doctor, dated January 19, 2017, stating the home services were required (Exhibit Z, page 29). However, the parent’s did not provide the letter to the District until February 26, 2017 (Exhibit Z, page 24). The District requested permission to speak to the student’s doctor in order to confirm that home instruction appropriate. The parents refused (Tr. 133). Thereafter, the District denied the parents’ request for home instruction because the District believed that it was not medically necessary for the student to receive the pendency program at home, which did not worked well when in occurred previously, and because the student’s pendency program was available at the school (Tr. 129, 135- 136).

Consequently, the student did not receive any educational services from January 2017 to approximately May 2017 when the student returned to NNNNN Elementary and continued with the pendency placement (Tr. 67, 83,135, 135).

In April of 2017, the District re-administered a psychological evaluation, which was conducted by a licensed school psychologist (Exhibit 49, Tr. 89-90). The school psychologist administered the Wechsler Intelligence Scale for Children, Fifth Edition, which is a standardized test used to measure a child’s cognitive ability and which is typically utilized in an educational setting in order to develop an appropriate educational program (Exhibit 49, Tr. 89, 94). The student was able to complete the entire evaluation, which he could not do when it was first administered in 2014 (Tr. 90). The results showed that the student’s cognitive functioning was in the “very low range,” which was consistent with what the staff members who worked with the student were reporting (Tr. 91). Additionally, the results showed that although the student’s skills were very low, his skills were consistent from the testing conducted in 2014 (Tr. 90).

On April 17, 2017, the District administered an updated speech and language evaluation, which was conducted by a licensed speech and language therapist who had been providing speech services to the student since February 2016 (Exhibit 48, Tr. 210, 211). The speech evaluator attempted to administer four subtests of the Clinical Evaluation of Language Fundamentals, Fourth Edition (“CELF IV), which is a standardized speech and language assessment typically used in the educational setting (Tr. 217). However, the student was unable to respond to the demands of the assessment (Tr. 215, 217). Therefore, the evaluator selected and administered a Receptive One-Word Vocabulary Test and an Expressive One-Word Vocabulary test, as well as a Picture Vocabulary Test, to measure the student’s language skills (Exhibit 48, Tr. 215). The student’s results on the assessments placed him below the 1st percentile, which demonstrated that the student possessed very low language skills (Tr. 219). Additionally, the evaluator testified that the student’s scores on the assessments were consistent with what she observed of the student’s abilities in their speech sessions and consistent with what was reported regarding the student’s functioning when provided with services by other staff at the District (Tr. 219-220). The evaluator also noted that her assessment was sufficient to measure the student’s skills and that no other assessments were required (Tr. 221).

On cross-examination, the speech evaluator noted that some of the student’s skills had regressed because he had not been in school since January 2017. She also testified that although the student’s tutor was present during the time the evaluation, the tutor did not put her hands on the student (Tr. 228).

Regarding the issue of whether the student could formulate a sentence and report that he had been injured, the evaluator stated that she did not know if the student was capable of putting a “whole sentence together like that” (Tr. 229). Additionally, the evaluator opined that the alleged reported injury came about due to the student’s echolalia and that she did not believe the report was true (Tr. 230- 231).

With respect to transporting the student off the bus, the speech evaluator stated that in the beginning of the school year she assisted the student’s teacher with the process of getting the student off the bus and into the building (Tr. 238). She also noted that on one or two occasions she and the staff had to loop their arms under the student’s shoulder after he flopped on the ground screaming (Tr. 243). However, she confirmed that the student was never lifted in the air (Tr. 244).

In April of 2017, the District administered an educational evaluation of the student by a licensed special education teacher (Tr. 248, 251). The evaluator utilized the Brigance Inventory of Basic Skills because it contains a section that measures “readiness” skills (Tr. 251). The evaluator noted that based on her review of the student’s educational file and his previous evaluations, the Brigance was the best assessment to get an accurate picture of the student’s strengths and weaknesses (Tr. 251). The testing results indicated that the student was at the “readiness level” in reading and the “pre-readiness level” in math (Exhibit 51, Tr. 251). The evaluator also reported that the results of her assessment were consistent with what she had been told by the student’s tutor and related service providers regarding what the student’s academic skills were. She also noted that she believed the results were an accurate picture of student’s academic abilities (Tr. 256-257).

On cross-examination, the evaluator confirmed that the student was echolalic (Tr. 263).

On May 5, 2017, the District administered an updated OT evaluation, which was conducted by a licensed occupational therapist (Exhibit 50, Tr.303). The evaluator utilized a sensory profile, which she received from the student’s parent in order to obtain a sensory history. The evaluator also administered a test to assess the student’s visual motor abilities, as well as reflex test and an ocular motor test to ascertain the student’s foundational skills, inter alia (Tr. 306). Based on the results of the testing, the evaluator determined that the student had a “high level” of sensory needs in numerous areas of sensory processing (Tr. 307). She also determined that the student had deficits in his “ocular motor skills, muscle tone movement patterns, visual motor skills, visual perception and fine motor skills” (Tr. 309).

Further, the evaluator determined that the student required a sensory diet in order to manage his day. The evaluator also confirmed that a COTA is permitted to develop a sensory diet, with the supervision of an OTR, under the occupational therapy standards (Tr. 311-312).

On cross-examination, the evaluator explained that “deep pressure massage” is the same as “deep pressure touch” in the OT realm, but that deep pressure massage by an OT therapist is not the same as receiving a massage from a massage therapist (Tr. 327). The evaluator also confirmed that a therapy whistle is not the same as an ordinary whistle, and that students with hearing sensitivities often like to make their own noise and are not typically disturbed by the use of a therapy whistle (Tr. 320).

With respect to the parents’ request for an IEE, it is undisputed that Dr. CCCCC is a neuropsychologist in the State of Florida. Dr. CCCCC also utilizes a “brain scan” to determine whether or not a student suffers from the “Mathew Effect.” The Mathew Effect is a theory that when children with disabilities do not receive adequate educational remediation, they actually learn and/or read less, which could effect their cognitive scores.

Dr. CCCCC did not testify at the hearing.

The District denied the parents’ request for funding of an IEE with Dr. CCCCC. However, the District would agree to fund a neuro-psychological evaluation to be conducted by a neuro-psychologist within the State of New York and within the radius set forth in the District’s policy (Tr. 385).

FAPE:

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 v. T.A., 129 S. Ct. 2484, 2491 [2009]; Bd. of Educ. 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 8 (Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA (A.C. v. Bd. of Educ., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007]). Under the IDEA, if a procedural violation is 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]; A.H. v. Dep't of Educ., 2010 WL 3242234, at *2 [2d Cir. Aug. 16, 2010]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007] aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008]).

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 v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]; see Rowley, 458 U.S. at 189). 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 P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; Perricelli, 2007 WL 465211, at *15). Additionally, to meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances: Endrew F. v. Douglas County School District, 137 S. Ct. 29 (2016). 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 Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the 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; E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009]; Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]).

The parents’ DPCs allege a denial of FAPE for the 2016-2017 school year. However, it is understood that IHO LLLLL addressed the alleged denial of FAPE from the summer of 2016 through January of 2017 (Exhibit TT). Thus, the issue before me is limited to whether the District denied the student a FAPE from January 2017 through May of 2017.

Here, the record shows that the SRO found that the District’s proposed 6:1:2 class with the related services and accommodations referenced above, could have provided the student FAPE as of September 2016 had the parents’ enrolled the student in the placement (SRO decision Exhibit 2). Additionally, as of January 2017, IHO LLLLL found that the District’s updated BIP was appropriate to meet the student’s needs (Exhibit T). Thus, I find that the record demonstrates that the IEPs developed in June and November 2017, along with the BIP that was developed in January 2017, could have provided the student with FAPE had the parents’ chose to place the student in the recommended program.

I note that although the proposed class did not exist in September 2016 or in January 2017, the record shows that the District was ready and willing and able to create the class in the event the parents agreed to the enroll the student in the proposed program. Thus, I find the parents’ claims that the student was denied a FAPE because the proposed class did not exist is without merit.

Additionally, although the parents’ claim that they were forced to remove the student from his pendency program at the District in order to protect the student from harm, nothing in the record supports their assertions. Specifically, I note that although the parents’ submitted a letter from an outside provider who claimed that the student told him that he was being harmed at school, the author of the letter did not testify at the hearing and his allegation was not otherwise substantiated. The record also shows that it was very unlikely that that student related this claim in a full sentence, as the parents’ claim, because the evidence shows that the student has very limited speech and cannot formulate a full sentence without significant prompts. Moreover, I note that although the letter containing the allegation was dated January 13, 2017, the record shows that the parents did not provide the District with a copy of the letter until February 7, 2017, which undermines the alleged urgency of the matter. Finally, the record shows that the police conducted investigation and determined that the allegation was unfounded. Thus, I find that the parents’ removal of the student from school in January 2017 was without justification and, therefore, did not obligate the District to provide the student with a program in an alternative location. Accordingly, under these facts, I find that the District is not responsible to provide the student with compensatory educational services during for this time period ((Wenger v. Canastota, 979 F. Supp. 147 [N.D.N.Y. 1997]).

Further, the record shows that the parents’ claims with respect to the BIP, ABA services, parent counseling services and the student’s sensory diet, were issues before IHO LLLLL. As such, I find that based on the principles of res judicata and collateral estoppel, the parents are precluded from re-litigating these issues before the undersign (Application of the Board of Education of the Iroquois CSD, Appeal No. 15-079).

IEE:

Federal and State regulations provide that, subject to certain limitations, a parent has the right to an IEE at public expense if the parent disagrees with an evaluation obtained by the school district (34 C.F.R. § 300.502[a], [b]; 8 NYCRR 200.5[g][1]; see 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]). A parent, however, is only entitled to one IEE at public expense "each time the public agency conducts an evaluation with which the parent disagrees" (34 C.F.R. § 300.502[b][5]; 8 NYCRR 200.5[g][1]; see R.L., 363 F. Supp. 2d at 234-35). If a parent requests an IEE at public expense, the school district must, without unnecessary delay, ensure that either an IEE 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 (34 C.F.R. § 300.502[b][2][i]-[ii];5 8 NYCRR 200.5[g][1][iv]; see, e.g., A.S. v. Norwalk Bd. of Educ., 183 5 , Appeal No. 08-039; , Appeal No. 07-126; , Appeal No. 06-067; , Appeal No. 05-009; F. Supp. 2d 534, 549 [D. Conn. 2002] [upholding order of reimbursement where the district failed to demonstrate that its evaluation was appropriate]; Application of the Bd. of Educ., Appeal No. 09-109; Application of a Student with a Disability, Appeal No. 08-101). If a school district's evaluation is appropriate, a parent may not obtain an IEE at public expense (34 C.F.R. § 300.502[b][3]; 8 NYCRR 200.5[g][1][v].

Here, the evidence shows that the parent requested that the District fund an independent neuro-psychological evaluation to be conducted by Dr. CCCCC in the State of Florida. The District denied the parent’s request and filed a cross-DPC to defend the evaluations the District conducted in April and May 2017.

First, with respect to the District’s evaluations, the evidence shows that all of its evaluations were appropriates. Specifically, the evidence shows that each evaluation was conducted with the standard protocols and that all of evaluations were of the type that are typically used and generally accepted in the educational setting in order to determine a students cognitive and academic functioning. Additionally, the OT and speech evaluations utilized were standard assessments used in each of the respective disciplines. Moreover, the record shows that the parents failed to offer any evidence to the contrary. Accordingly, I find that all of the District’s evaluations were appropriate.

Further, the record shows that Dr. CCCCC did not testify at the hearing. Thus, I find that the parents’ failed to present sufficient evidence that the requested evaluation by Dr. CCCCC was warranted.1

Finally, although the District did not immediately move to initiate a hearing to defend its evaluations, I find that its cross-DPC, which was filed in September 2017, was not an unreasonable and/or an unnecessary delay.

Thus, for the foregoing reasons, the parents’ request for an IEE by Dr. CCCCC is denied.

ORDERED

That the parents’ DPCs are dismissed in their entirety, with prejudice.

Dated: Suffolk, New York

January 10, 2018 James McKeever James McKeever, Esq.

Impartial Hearing Officer

PLEASE TAKE NOTICE

Within 40 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.

If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.

An appealing party's request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov. Directions and sample forms can be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.

Parent’s Exhibits:

PE#A March 11,2014 Occupational Therapy Evaluation ( 7 pages) PE #B 03/20/2015 Letter from Dr. ( 1 page) PE#C 03/26/2015 Email from Parents to District ( 3 pages) PE#D 05/19/2015 Audiologic Evaluation by (3 pages) PE # E 1-07/15/2015 Letter from Dr. ( 1 page)

2-01/07/2016 Invoice from Dr. Office ( 1 page) PE#F 07/16/2015 IEP ( 11 pages) PE #G 07/22/2015 Prescriptions from Dr. FFF ( 2 pages) PE #H 10/21/2015 Prescriptions from Dr. FFF ( 3 pages) PE#I 12/11/2015 Behavioral Intervention Plan from (4 pages) PE# J Previously submitted as PE #L –2/18/2016 - Florida School District 2016- 17 Budget ( 24 pages) PE#K Previously submitted as PE #FFFFFF Minutes 02/18/2016 - 12/15/2016 Florida Union Free School District -Board of Education Minutes - printed from their below website on July 29th,2017............................ http://www.floridaufsd.org/board-of-education/board-meeting-minutes/ 2016/2017 School year December 15, 2016 #23 ( 6 pages) November 22, 2016 #22 ( 6 pages) October 20, 2016 #21 ( 6 pages) October 6, 2016 Special Meeting #20 ( 2 pages) September 15, 2016 #19 ( 10 pages) September 1, 2016 Special Meeting #18 ( 2 pages) August 11, 2016 #17 ( 7 pages) July 14, 2016 Organizational Meeting & Regular Meeting #16 ( 21 pages) 2015/2016 June 27, 2016 Special Meeting #15 ( 2 pages) June 22, 2016 Special Meeting #14 ( 4 pages) June 16, 2016 #13 ( 9 pages) June 14, 2016 Public Hearing #12 ( 1 page) June 2, 2016 Special Meeting #11 ( 3 pages) May 19, 2016 #10 ( 9 pages) May 5, 2016 Public Hearing #9 ( 1 page) May 5, 2016 Special Meeting #8 ( 1 page) May 2, 2016 Special Meeting #7 ( 1 page) April 20, 2016 #6 ( 7 pages) April 13, 2016 Special Meeting #5 ( 1 page) April 7, 2016 Special Meeting #4 ( 2 pages) March 31, 2016 Special Meeting #3 ( 1 page) March 17, 2016 #2 ( 7 pages) February 18, 2016 #1 ( 9 pages) PE#M 04/04/2016 Email from X Xxxxx to District ( 3 pages) PE#N 04/07/2016 Email from X Xxxxx to District ( 8 pages) PE#O Previously submitted as #H –CD - Audio of IEP 06/13/2016 PE#P 06/22/2016 Sensory Diet by ( 7 pages) PE #Q 08/18/2016 Letter from Dr. Ppppp S ( 4 pages) PE #R 08/18/2016 Prescriptions from Dr. Ppppp UUUU ( 6 pages) PE# S 08/31/2016 Letter from LLLL Ppppp & 09/03/2016 Email from LLLL Ppppp to Jjjjj BBBB ( 2 pages) PE#V 09/16/2016 Email from LLLL Ppppp to Parents ( 3 pages) PE#W 09/19/2016 Prescription from Dr. KKKKK ( 1 page) PE# X Previously submitted as PE #K – 3 Emails from Mrs. Xxxxx to Ms. GGG 9/30/2016; 10/04/2016 & 10/07/2016 ( 3 pages) PE# Y 10/07/2017 Letter from Dr. UUUU ( 1 page) PE # Z Previously submitted as PE#G1. 11/15/2016 - 02/26/2017 Emails & letters from parents (PE # MMMMM last remand hearing) ( 30 pages) PE #AA - 11/22/2016 State Complaint Decision ( 19 pages) PE#BB Previously submitted as PE #S 11/29/2016 CD of CSE meeting PE#CC Previously submitted as PE #P- State Complaint response 12-16-2016 emailed (5 pages) PE#DD Previously submitted as PE #N 01/05/2017 police report -emailed (2 pages) PE#EE 01/13/17 Letter from Ooooo, Access: Support for Living ( 1 page) PE #FF 01/19/2017 Letter from Dr. Ppppp UUUU ( 1 page) PE#GG 02/07/2017 Email from Parents to Ms. PPPP ( 6 pages) PE# HH Letters from Dr. FFF #1 02/09/2017 ( 1 page) #2 02/24/2017 ( 1 page) #3 03/07/2017 ( 1 page) PE# II Previously submitted as PE#R- 03/05/2017 email from Parents to FUFSD emailed ( 4 pages) PE#JJ Previously submitted as PE#J Email Ms. PPPP to X Xxxxx 6-05-2017 ( 2 pages) PE#KK- 06/15/2017 IEP ( 17 pages) PE#LL Previously submitted as PE #M email Ms. PPPP to Parents 6-30-2017 emailed ( 3 pages) PE#MM Previously submitted as PE #Q- 07/07/2017 letter from BCBA Ms. 2222a emailed ( 1 page) PE #PP - 09/11/2017 Email from Xxxxx to District( 8 pages) PE#RR- Previously submitted as PE#T- 09/13/2017; originally sent 11/23/2015; email from Parents to FUFSD (emailed) ( 1 page) PE#TT LLLLL Decision re Comp Ed. PE#UU - 09/22/2017 Letter from Dr. UUUU ( 1 page)

District’s Exhibits:

1. IHO Decision (18 pages) 2. SRO Decision (25 pages) 3. 6/13/16 IEP (14 pages) 4. 11/29/16 IEP (14 pages) 5. 3/9/17 IEP (15 pages) 6. Summer School 2016 progress report (5 pages) 7. Behavioral ABC data sheets (44 pages) 8. ABA skills tracking sheets used by BCBA (9 pages) 9. Social/academic skills mastered forms (5 pages) 10. Academic skill tracking forms used by tutor (14 pages) 11. Revised data collection forms (38 pages) 12. Related service logs (24 pages) 13. 1111 1111 service log (16 pages) 14. Communication log (60 pages) 15. Vital Behavior Services MAPP Programs (18 pages) 16. Attendance records from 9/1/16 forward (5 pages) 17. Vital Behavior Services invoices from 7/1/16 (46 pages) 18. 11/10/16 letter from to parents (3 pages) 19. 11/15/16 invitation to 11/29/16 CSE meeting (2 pages) 20. 11/28/16 Prior Written Notice (4 pages) 21. 11/29/16 Prior Written Notice (3 pages) 22. 11/29/16 Prior Written Notice (2 pages) 23. 12/2/16 letter from LLLL Ppppp to parents (1 page) 24. 12/2/16 progress report on IEP goals, with cover letter from LLLL Ppppp (6 pages) 25. 12/14/16 letter from2222 PPPP to parents (2 pages) 26. 12/15/16 letter from LLLL Ppppp to parents (1 page) 27. 1/9/17 Prior Written Notice (3 pages) 28. 1/20/17 Meeting Notice (2 pages) 29. 1/23/17 letter from LLLL Ppppp to parents (1 page) 30. 1/27/17 Behavioral Intervention Plan (14 pages) 31. 2/22/17 progress report on IEP goals (6 pages) 32. 2/27/17 Meeting Notice (2 pages) 33. 3/9/17 Prior Written Notice (3 pages) 34. 3/9/17 Prior Written Notice (2 pages) 35. 3/16/17 letter from LLLL Ppppp to parents (1 page) 36. 3/20/17 Prior Written Notice (4 pages) 37. 3/21/17 letter from2222 PPPP to parents (1 page) 38. 4/3/17 consent form (1 page) 39. Parent counseling and training dates offered (17 pages) 40. September 2016 - January 2017 calendar (5 pages) 41. Transportation reimbursement paperwork (3 pages) 42. Documentation regarding 11/15/16 accident (4 pages) 43. 2/28/17 letter from PPPP to parents, with attachments (4 pages) 44. 2/2/17 letter from to parent and (8 pages) 45. Withdrawn 46. 7/10/17 IEP (19 pages) 47. 2/28/17 CSE Special Education Related Annual Review (2 pages) 48. 4/27/17 Speech & Language Evaluation (2 pages) 49. 4/28/17 Confidential Psychological Re-Evaluation (7 pages) 50. 5/5/17 Occupational Therapy Evaluation (4 pages) 51. 5/12/17 Re-evaluation Report (2 pages) 52. 6/14/17 CSE Annual Review (1 page) 53. 6/15/17 Vital Behavior Service ABA Report for CSE (1 page)

ORIGINAL HEARING, PART 1

54. Transcript of hearing 4-1-16 (17 pages) - Volume 1 55. Transcript of hearing 5-3-16 (82 pages) - Volume 2 56. Transcript of hearing 6-1-16 (93 pages) - Volume 3 57. Transcript of hearing 6-10-16 (83 pages) - Volume 4 58. Transcript of hearing 6-14-16 (99 pages) - Volume 5

ORIGINAL HEARING, PART 2

59. Transcript of hearing 8-10-16 (20 pages) - Volume 1 60. Transcript of hearing 9-13-16 (91 pages) - Volume 2 61. Transcript of hearing 9-19-16 (79 pages) - Volume 3 62. Transcript of hearing 9-28-16 (90 pages) - Volume 4 63. Transcript of hearing 10-17-16 (81 pages) - Volume 5 64. Transcript of hearing 10-25-16 (20 pages) - Volume 6

REMAND HEARING

65. Transcript of hearing 5-2-17 (80 pages) - Volume 1 66. Transcript of hearing 5-11-17 (74 pages) - Volume 2 67. Transcript of hearing 5-22-17 (61 pages) - Volume 3 68. Transcript of hearing 8-8-17 (99 pages) - Volume 4

IHO Exhibits:

1-Parent’s DPCs a 2- District’ DPC 3- Orders of Consolidation 4-Orders of Extension; and 5-Post Hearing Briefs

Footnotes

[1] I note that the parents’ request to present an evaluation by Dr. CCCCC of different student and testimony of that student’s parent was excluded because the undersigned determined that said evidence was irrelevant and unreliable.