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FINDINGS OF FACT & DECISION
Case Number: 183834
Student Name:
Date of Birth:
District:
Hearing Requested By: Parents
Actual Record Close Date: September 7, 2020
Hearing Officer: Jeffrey J. Schiro, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 4, 2020
ESQ., Attorney (via telephone) — Student
Parent (via telephone) — Student
Assistant Division Head, (via telephone) — Student
ESQ., Attorney (via telephone) — DOE
I. JURISDICTION - OVERVIEW OF ADMINISTRATIVE PROCEDURES
This impartial due process proceeding arises under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400-1482, and Article 89 of the New York State Education Law. This hearing was requested by the attorneys for the student and the parents in a due process complaint notice dated June 29, 2019. The primary issue to be determined at this hearing is whether the Department of Education (the “DOE”) offered the student a free appropriate public education (“FAPE”) for the 201 9/20 school year (Ex. P-A).[1]
When a student in New York is eligible for special education services, the IDEA calls for the creation of an individualized education program (“IEP”), which is delegated to a local committee on special education (the “CSE”) that includes, but is not limited to, parents, teachers, at least one psychologist, and school district representatives. See N.Y. Educ. Law § 4402; see also 20 U.S.C. §§ 1414(d)(1)(a)-(b); 34 C.F.R. §§ 300.320, 300.321; 8 NYCRR §§ 200.3, 200.4(d)(2). If disputes occur between parents and school districts, incorporated among the procedural protections is the opportunity to engage in mediation, present state complaints, and initiate an impartial due process hearing. See 20 U.S.C. §§ 1221e-3, 1415(e)-(f); 34 C.F.R. §§ 300.151 - 300.152, 300.506, 300.511; N.Y. Educ. Law § 4404(1); 8 NYCRR §§ 200.5(h)-(l).
New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding “any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student.” See 8 NYCRR § 200.5(i)(1); see also 20 U.S.C. §§ 1415(b)(6)-(7); 34 C.F.R. §§ 300.503(a)(1)-(2), 300.507(a)(1). An impartial hearing officer (“IHO”) typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and confront, cross-examine and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five (5)
business days before the hearing; and obtain a verbatim record of the proceeding. See 20 U.S.C.
§§ 1415(f)(2)(a), (h)(1)-(3); 34 C.F.R. §§ 300.521(a)(1)-(4); 8 NYCRR §§ 200.5(j)(3)(v), (vii),
(xii).
The IHO must render and transmit a final written decision in the matter to the parties not later than forty-five (45) days after the expiration period or adjusted period for the resolution process. See 34 C.F.R. §§ 300.510(b)(2), (c), 300.515(a); 8 NYCRR § 200.5(j)(5). A party may seek a specific extension of time of the 45-day timeline, which the IHO may grant in accordance with state and federal regulations. See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5). The decision of the IHO is binding upon both parties unless appealed. See N.Y. Educ. Law § 4404(1).
A party aggrieved by the decision of an IHO may appeal that decision to a State Review Officer (“SRO”). See N.Y. Educ. Law § 4402(2); see also 20 U.S.C. § 1415(g)(1); 34 C.F.R. § 300.514(b)(1); 8 NYCRR § 200.5(k).
II. PROCEDURAL HISTORY
The DOE appointed the undersigned to serve as the IHO in this matter on June 29, 2019.
See 8 NYCRR § 200.5(j)(3)(i). In a due process response dated July 5, 2019, the DOE denied each and every allegation contained in the parents’ complaint (Ex. P-C). See 8 NYCRR §
200.5(i)(4). A hearing on the merits of the matter was thereafter held on June 4, 2020. Appended to this decision are: a statement of appeal rights; a list of the persons in attendance at the hearings; and a list of the documents received into evidence. See 8 NYCRR § 200.5(j)(5)(v).[2]
III. FACTUAL BACKGROUND
At the time of the June 29, 2019 due process complaint, the student was years old and has been diagnosed with Dravet Syndrome, Epilepsy, Attention Deficit/Hyperactivity Disorder, Mixed Expressive/Receptive Language Disorder with Speech Apraxia, intellectual delays and global developmental delays (Exs. P-A at 2, P-O at 12). Since the 2012/13 school year, the student has attended the (“ ”) (Ex. P-A at 2), which has not been approved by the Commissioner of Education as a nonpublic school with which public school districts may contract to instruct students with disabilities. See 8 NYCRR §§ 200.1(d), 200.7. The student's eligibility for special education and related services as a student with an intellectual disability is not in dispute in this hearing (Ex. P-A). See 8 NYCRR §
200.1(zz)(7).[3]
The student attended preschool at the in Brooklyn.
According to a November 23, 2010 IEP, she was in a 12:1+2 classroom with a full time individual paraprofessional and related services of occupational therapy, speech therapy and physical therapy (Ex. P-A at 2).
Beginning on September 10, 2012, the parents have unilaterally placed the student at for each school year through the 2019/20 school year. The DOE has reportedly settled all past claims brought by the parents and funded the student’s program and placement at (Ex.
P-A at 2).
The parents assert, and the DOE does not dispute, that the CSE never contacted them regarding an IEP meeting for the student for the 2019/20 school year. The parents claim that the absence of an IEP or recommended school placement for the 2019/20 school year denied the student a FAPE on both procedural and substantive grounds (Ex. P-A). This hearing ensued.
IV. POSITIONS OF THE PARTIES
A. The DOE
The parents’ claim for tuition reimbursement for their unilateral placement of the student at for the 2019/20 school year should be denied. was not an appropriate placement for the student because the private program was not uniquely tailored to meet the student’s needs and did not provide her with educational benefit. The DOE also opposes the parents’ request independent educational evaluations of the student (Ex. SD-1).
B. The Parents
The DOE should be ordered to reimburse the parents, and/or directly pay, for the student’s unilateral placement at for the 2019/20 school year. The DOE failed to develop an appropriate educational program for the student. In contrast, appropriately addressed the student’s unique educational needs. The relevant equities also support an award of tuition reimbursement, and/or direct public funding, of the student’s private placement. The DOE should also be directed to fund several independent educational evaluations of the student at public expense (R. 30-32; Exs. P-A, P-T).
educational performance. 8 NYCRR § 200.1(zz)(7).
V. FINDINGS OF FACT AND CONCLUSIONS OF LAW
A. Applicable Legal Standards
Two purposes of the IDEA, see 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, see 20 U.S.C. § 1400(d)(1)(A)-(B); see generally Forest Grove v.
T.A., 557 U.S. 230, 239 (2009); Board of Educ. of the Hendrick Hudson Cent. Sch. Dist. v.
Rowley, 458 U.S. 176, 206-07 (1982).[4]
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.
See Rowley, 458 U.S. at 206-07; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 (2d Cir. 2014); H.C. v. Katonah-Lewisboro Union Free Sch. Dist., 2013 WL 3155869 (2d Cir. June
24, 2013); R.E. v. New York City Dep't. of Educ., 694 F.3d 167, 189-90 (2d Cir. 2012), cert.
denied 2013 WL 1418840 (U.S. June 10, 2013); M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 (2d Cir. 2012); Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005).
"'[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP.'" Walczak v.
Florida Union Free Sch. Dist., 142 F.3d 119, 129 (2d Cir. 1998) (quoting Rowley, 458 U.S. at 206); see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 (2d Cir. 2009). The
Supreme Court has indicated that "[t]he IEP must aim to enable the child to make progress.
After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement." Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. __, 137 S. Ct.
988, 999 (2017). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and has indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not," see R.E., 694 F.3d at 190-91, the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA, M.H., 685 F.3d at 245; A.C. v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 (2d Cir. 2009); Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 (2d Cir. 2003); Perricelli v. Carmel Cent.
Sch. Dist., 2007 WL 465211, at *10 (S.D.N.Y. Feb. 9, 2007).
Under the IDEA, if procedural violations are alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies: (a) impeded the student's right to a FAPE; (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student; or (c) caused a deprivation of educational benefits. See 20 U.S.C. § 1415(f)(3)(E)(ii); 34 CFR § 300.513(a)(2); 8 NYCRR § 200.5(j)(4)(ii); Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 (2007); R.E., 694 F.3d at 190; M.H., 685 F.3d at 245; 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), aff'd, 2009 WL 3326627 (2d Cir. Oct. 16, 2009); 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. See 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." See Rowley, 458 U.S. at 203. The "IDEA, [however,] does not itself articulate any specific level of educational benefits that must be provided through an IEP." Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189. “The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created.” Endrew F., 137 S. Ct. at 1001. The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents." See Walczak, 142 F.3d at 132 (quoting Tucker v. Bay Shore Union Free Sch.
Dist., 873 F.2d 563, 567 (2d Cir. 1989); see also Grim, 346 F.3d at 379. Additionally, school districts are not required to "maximize" the potential of students with disabilities. See 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.'" See Cerra, 427 F.3d at 195 (quoting Walczak, 142 F.3d at 130); see also T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 (2d Cir. 2008); Perricelli, 2007 WL 465211, at *15. The IEP must be "reasonably calculated to provide some 'meaningful' benefit" See Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997); see also Endrew F., 137 S. Ct. at 1001 (holding that the IDEA “requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances”); Rowley, 458 U.S. at 192.
The student's recommended program must also be provided in the least restrictive environment (“LRE”). See 20 U.S.C. § 1412(a)(5)(A); 34 C.F.R. §§ 300.114(a)(2)(i), 300.116(a)(2); 8 NYCRR §§ 200.1(cc), 200.6(a)(1); see also 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; G.B. v. Tuxedo Union Free Sch. Dist., 751 F. Supp. 2d 552, 573-80 (S.D.N.Y. 2010), aff'd, 2012 WL 4946429 (2d Cir. Oct. 18, 2012); E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp.
2d 384, 388 (S.D.N.Y. 2009); Patskin v. Board of Educ., 583 F. Supp. 2d 422, 428 (W.D.N.Y.
2008).
An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance, see 34 C.F.R.
§ 300.320(a)(1); 8 NYCRR § 200.4(d)(2)(i); Tarlowe v. Dep't of Educ., 2008 WL 2736027, at *6 (S.D.N.Y. July 3, 2008), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum, see 34 C.F.R. §§ 300.320(a)(2)(i), (2)(i)(A); 8 NYCRR § 200.4(d)(2)(iii), and provides for the use of appropriate special education services, see 34 C.F.R. § 300.320(a)(4); 8 NYCRR § 200.4(d)(2)(v).
The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement. See N.Y. Educ. Law § 4404(1)(c); see also R.E., 694 F.3d at 184-85; M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at *7 (S.D.N.Y. Aug. 27, 2010).
B. FAPE Analysis
The parents assert that the DOE failed to develop an IEP for the student for the 2019/20 school year and failed to offer her any school placement (Ex. P-A at 2-3). The DOE does not dispute that it failed to offer the student a FAPE for the 2019/20 school year (Ex. SD-1 at 7). Accordingly, I find in the parents’ favor on that issue.
C. Appropriateness of
Given my finding that the DOE failed to provide the student with a FAPE during the 2019/20 school year, I turn to the appropriateness of the parents’ private programs. With respect to the second criterion for an award of reimbursement, the parents must show that the private services obtained for the student were appropriate to meet her special education needs. See Frank
G. v. Board of Educ., 459 F.3d 356, 363 (2d Cir. 2006), cert. denied, 552 U.S. 985 (2007).
Parents seeking reimbursement “bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate.” See Gagliardo, 489 F.3d at 112.
In order to meet that burden, a private placement must be “proper under the Act,” see Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370, i.e., the private school offered an educational program which met the student’s special education needs, see Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129. A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement. See Carter, 510 U.S. at 14.
The private school need not employ certified special education teachers or have its own IEP for the student. See id. at 13-14. “Subject to certain limited exceptions, ‘the same considerations and criteria that apply in determining whether the [s]chool [d]istrict’s placement is appropriate should be considered in determining the appropriateness of the parents’ placement.’” Gagliardo, 489 F.
3d at 112, quoting Frank G., 459 F.3d at 364. Parents need not show that the placement provides every special service necessary to maximize the student’s potential. See Frank G., 459 F.3d at 364-65. When determining whether the parents’ unilateral placement is appropriate, “[u]ltimately, the issue turns on” whether that placement is “reasonably calculated to enable the child to receive educational benefits.” Id. at 364; see also Gagliardo, 489 F.3d at 115. A “private placement is only appropriate if it provides ‘education instruction specifically designed to meet the unique needs of a handicapped child.’” Gagliardo, 489 F.3d at 115, quoting Rowley, 458 U.S.
at 188-89; see also Weaver v. Millbrook Cent. Sch. Dist., No. 09-CV-692 (KMK), 111 LRP 59361 (S.D.N.Y. Sept. 6, 2011).
Based on the evidence entered into the hearing record, including the credible testimony of Ms. , Assistant Division Head of the , and the student’s parent, I find that was an appropriate twelve-month program for the student because it provided her with specifically designed, individualized instruction to meet her unique educational needs and from which she derived educational benefit (Exs. P-D, P-E, P-F, P-G, P-H, P-I, P-N, P-
Q, P-R, P-S).
is a non-profit, independent special education school accredited by the New York State Association of Independent Schools (Ex. P-S ¶1). It is a school for students with a broad range of developmental disabilities (Ex. P-S ¶7). The students have a variety of disability classifications and typically have language-based learning disabilities, academic deficits, and/or deficits in adaptive daily living skills (Ex. P-S ¶7). The school currently has 305 students, ages 5 through 21. The middle school has approximately 107 students, ages 5 through 14 (Ex. P-S ¶8).
At the middle school, the student received instruction in a small, structured classroom consisting of ten students, two teachers and four para-professionals (Ex. P-S ¶30-31).
The head teacher, , had a Master’s Degree in General and Special Education, grades 7 through 12, and was finalizing her NYS certification (Ex. P-S ¶32). The assistant teacher, , had a B.A. in Early Childhood Education (Ex. P-S ¶32). All academic subjects were taught in this class (Ex. P-S ¶31). There was a high degree of structure in the classroom (Ex. P-S ¶30), including multi-sensory and multi-modal instruction (Ex. P-S ¶¶11, 28). Visual aids and manipulatives were also frequently employed (Ex. P-S ¶¶11, 28). Instruction was collaborative, mixing education in different areas, and promoting interdisciplinary communication (Ex. P-S ¶24). In addition, the student received intensive speech-language therapy, occupational therapy, physical therapy, and collaborative and integrated classes combining the related services (Ex. P-S ¶¶33-36). Behavior intervention was also available. (Ex.
P-S ¶14). At , the student received the assistance of a one-to-one para-professional, which continued during her remote learning necessitated by the COVID-19 pandemic (R. 51).
D. Relevant Equities
The final criterion for a reimbursement award is that the parents' claim must be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA. See Burlington, 471 U.S. at 374; R.E., 694 F.3d at 185, 194; M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 (2d Cir. 2000). “Courts fashioning discretionary equitable relief under [the] IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private placement was unreasonable.” Carter, 510 U.S. at 16.
The IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents. See 20 U.S.C. § 1412(a)(10)(C)(iii); 34 C.F.R. § 300.148(d); S.W. v. New York City Dep't of Educ., 646 F. Supp. 2d 346, 362-64 (S.D.N.Y. 2009); Thies v. New York City Bd. of Educ., 2008 WL 344728 (S.D.N.Y. Feb. 4, 2008); M.V. v. Shenendehowa Cent. Sch. Dist., 2008 WL 53181, at *5 (N.D.N.Y. Jan. 2, 2008); Bettinger v. New York City Bd. of Educ., 2007 WL 4208560, at *4 (S.D.N.Y. Nov. 20, 2007); Carmel Cent. Sch. Dist. v. V.P., 373 F. Supp. 2d 402, 417-18 (S.D.N.Y. 2005), aff’d, 192 Fed. Appx. 62, 2006 WL 2335140 (2d Cir. Aug. 9, 2006); Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 660-661 (S.D.N.Y. 2005).
The IDEA allows that reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the student from public school, or by written notice ten (10) business days before such removal, “that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense.” See 20 U.S.C. § 1412(a)(10)(C)(iii)(I); 34 C.F.R. § 300.148(d)(1). This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools." Greenland Sch. Dist. v.
Amy N., 358 F.3d 150, 160 (1st Cir. 2004). Although a reduction in reimbursement is discretionary, courts have upheld the denial of reimbursement in cases where it was shown that parents failed to comply with this statutory provision. See Greenland, 358 F.3d at 160; Ms. M. v.
Portland Sch. Comm., 360 F.3d 267 (1st Cir. 2004); Berger, 348 F.3d at 523-24; Rafferty, 315 F.3d at 27; see also Frank G., 459 F.3d at 376; Voluntown, 226 F.3d at 68; Lauren V. v. Colonial
Sch. Dist., 2007 WL 3085854, at * 13 (E.D. Pa. Oct. 22, 2007).
The relevant equities support an award of tuition reimbursement and/or direct payment for the student’s unilateral placement at for the 2019/20 school year. In a letter dated June 14, 2019, the parents gave the DOE adequate written notice of their intent to make a unilateral placement of the student at for the twelve-month 2019/20 school year at public expense (Ex. P-B). See 20 U.S.C. § 1412(a)(10)(C)(iii)(I); 34 C.F.R. § 300.148(d)(1). There is also no evidence indicating that the parents were uncooperative with the CSE, see 20 U.S.C. § 1412(a)(10)(C)(iii), nor was the cost of the student’s tuition and related services at unreasonable given the severity of the student’s needs and services necessary to address those needs (Exs. P-J, P-K, P-L, P-M, P-O), see Carter, 510 U.S. at 16.
E. Request for Independent Educational Evaluations
The parents seek an Order directing the DOE to fund the following independent educational evaluations (“IEEs”): (1) an assistive technology evaluation; (2) a speech/language evaluation; (3) a behavioral evaluation; and (4) a neuropsychological evaluation (Exs. P-A at 6, P-
T at 15-16).
Pursuant to federal and State procedures for determining a student's eligibility and educational needs, a "[CSE] and other qualified individuals must draw upon information from a variety of sources, including aptitude and achievement tests, parent input, and teacher recommendations, as well as information about the student's physical condition, social or cultural background, and adaptive behavior."[8] NYCRR § 200.4(c)(1); see 34 C.F.R. § 300.306(c)(i). To accomplish this task, a school district is required, in part, to conduct an initial evaluation of the student referred to the CSE. See 20 U.S.C. §§ 1414(a)(1)(B)-(C); 34 C.F.R. §§ 300.301, 300.306; federal regulation, an evaluation must assess the student "in all areas related to the suspected disability, including, if appropriate, health, vision, hearing, social and emotional status, general intelligence, academic performance, communicative status, and motor abilities." 34 C.F.R.
§ 300.304(c)(4). Under State regulation, an initial evaluation must include at least: (i) a physical examination; (ii) an individual psychological evaluation; (iii) a social history; (iv) an observation of the student in the student's learning environment (including the regular classroom setting); and
(v) other appropriate assessments or evaluations, including an FBA for a student whose behavior impedes his or her learning or that of others, as necessary to ascertain the physical, mental, behavioral and emotional factors which contribute to the suspected disabilities. See 8 NYCRR § 200.4(b)(1).[5] A CSE may direct that additional evaluations or assessments be conducted in order to appropriately assess the student in all areas related to the suspected disabilities. See 8 NYCRR § 200.4(b)(3).
Federal and State evaluation procedures require that any evaluation of a student with a disability must use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information about the student, including information provided by the parent, that may assist in determining, among other things, the content of the student's IEP.
See 20 U.S.C. § 1414(b)(2)(A); 34 C.F.R. § 300.304(b)(1)(ii); 8 NYCRR § 200.4(b)(1); see Letter to Clarke, 48 IDELR 77 (OSEP 2007). In particular, a school district must rely on technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors. See 20 U.S.C. § 1414(b)(2)(C); 34 C.F.R.
§ 300.304(b)(3); 8 NYCRR § 200.4(b)(6)(x). A school district must ensure that a student is appropriately assessed in all areas related to the suspected disability, including, where appropriate, social and emotional status. See 20 U.S.C. § 1414(b)(3)(B); 34 C.F.R.
§ 300.304(c)(4);[8] NYCRR § 200.4(b)(6)(vii). An evaluation of a student must be sufficiently comprehensive to identify all of the student's special education and related services needs, whether or not commonly linked to the disability category in which the student has been classified. See 34 C.F.R. § 300.304(c)(6);[8] NYCRR § 200.4(b)(6)(ix).[6]
The IDEA provides parents with a number of procedural safeguards. Among them is the "right . . . to obtain an independent educational evaluation of the child," which in turn means "an evaluation conducted by a qualified examiner who is not employed by the public agency responsible for the education of the child in question." 34 C.F.R. §§ 300.502(a)(1), (3)(i). Parents who express a disagreement with an evaluation conducted by the district also have the right to seek an IEE conducted at public expense in some circumstances. See 34 C.F.R. § 300.502(b); disagree with an evaluation obtained by a public agency defeated a parent's claim for an IEE at public expense that was sought for additional information). "If the parent obtains an independent educational evaluation at public expense or shares with the public agency an evaluation obtained at private expense, the results of the evaluation [m]ust be considered by the public agency, if it meets agency criteria, in any decision made with respect to the provision of FAPE to the child."
34 C.F.R. § 300.502(c).
If a parent requests an IEE at public expense, the school district must, without unnecessary delay, either (1) ensure that an IEE is provided at public expense; or (2) initiate an impartial hearing to establish that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria. See 34 C.F.R. §§ 300.502(b)(2)(i)-(ii); 8 NYCRR §§ 200.5(g)(1)(iv), 200.16(d). If a school district's evaluation is determined to be appropriate by an IHO, the parent may still obtain an IEE, although the district will not be required to provide it at public expense. See 34 CFR § 300.502(b)(3); 8 NYCRR § 200.5(g)(1)(v). Additionally, both federal and State regulations provide that "[a] parent is entitled to only one [IEE] at public expense each time the public agency conducts an evaluation with which the parent disagrees." 34 C.F.R. § 300.502(b)(5); 8 NYCRR § 200.5(g)(1).[7] An IEE must use the same criteria as the public agency's criteria. See Seth B. v. Orleans Par. Sch. Bd., 810 F.3d 961, 973–79 (5th Cir. 2016). Informal guidance from the United States Department of Education's Office of Special Education Programs (“OSEP”) indicates that if a parent disagrees with an evaluation because a child was not assessed in a particular area, the parent has the right to request an IEE to assess the child in that area, see Letter to Baus, 65 IDELR 81 (OSEP 2015), however recent caselaw clarifies that parents may not demand a comprehensive IEE at public expense while at the same time refusing to consent to the school district's offer to conduct the same assessments, see D.S. v. Trumbull Bd. of Educ., 357 F. Supp. 3d 166, 178 (D. Conn. 2019).
As the burden of proof is on the school district during an impartial hearing, see N.Y. Educ. Law § 4404(1)(c); R.E. v. New York City Dep't of Educ., 694 F.3d 167, 184-85 (2d Cir. 2012), the school district bears the burden of showing that its evaluation of the student was appropriate in order to prevail in its challenge to the parent's requests for IEEs at public expense. See
Application of a Student with a Disability (New York City Dep’t of Educ.), Appeal No. 19-101 at 10 (SRO Dec. 6, 2019).
The student is entitled to the requested IEEs at public expense. The DOE offered no evidence that its evaluations of the student were appropriate. The parent testified (via affidavit) that the student has not been evaluated by the DOE for many years (Ex. P-N at ¶8). All of the requested evaluations concern areas of suspected disability. See 20 U.S.C. §1414(d); 34 C.F.R. § 300.304; 8 N.Y.C.R.R. §200.4(b)(6). The student is currently engaged with some assistive technology (R. 54-55), is receiving speech/language therapy (Ex. P-S ¶33), and has been recommended to receive behavior intervention (Ex. P-O).
VI. ORDER
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS
HEREBY ORDERED THAT:
The parents’ claim that the student was denied a free appropriate public education (FAPE)
for the 2019/20 school year is SUSTAINED;
Within thirty (30) days of the date of this Order, the DOE shall reimburse the parents, and/or directly pay, for all costs associated with the student’s unilateral placement at for the twelve-month 2019/20 school year; including related services, 1:1 paraprofessional services, and special education transportation on an air-conditioned mini-bus to and from school with limited time travel;
Within thirty (30) days of the date of this Order, the DOE shall authorize the student’s receipt of the following independent educational evaluations at public expense: (a) an assistive technology evaluation; (b) a speech/language evaluation; (c) a behavioral evaluation; and (d) a neuropsychological evaluation; and
Within thirty (30) days of its receipt of the completed independent educational evaluations, the CSE shall schedule a meeting to consider the results of said evaluations.
All other claims for relief are denied.
Dated: September 21, 2020
/s/ Jeffrey J. Schiro
Jeffrey J. Schiro, 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 the 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 the 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.
DOCUMENTATION ENTERED INTO THE HEARING RECORD
PARENTS
A. Due Process Complaint Notice/Impartial Hearing Request, 6/29/19, 10 pgs.
B. Ten Day Notice, 6/14/19, 6 pgs.
C. DOE Due Process Response, 7/5/19, 3 pgs.
D. Program Description, undated, 5 pgs.
E. Summer Academy Student Schedule, 2019, 1 pg.
F. Summer Academy Program Description, 2019, 2 pgs.
G. Summer Academy Attendance, 2019, 1 pg.
H. Remote Learning Schedule, 2019/20, 1 pg.
I. Progress Report, 6/2019, 26 pgs.
J. 4/30/19, 3 pgs.
K. Deposit, 6/25/19, 2 pgs.
L. Tuition Affidavit, 7/15/19, 2 pgs.
M. Affidavit of Financial Need, 5/28/20, 1 pg.
N. Affidavit of Parent, 5/28/20, 4 pgs.
O. Neuropsychological Evaluation, 5/14/15, 13 pgs.
P. Attendance Report, 2019/20, 1 pg.
Q. Progress Report, 11/2019, 21 pgs.
R. Schedule, 2019/20,[1] pg.
S. Affidavit of ( ), 5/28/20, 10 pgs.
T. Parents’ Closing Brief, 7/20/20, 22 pgs.
DEPARTMENT OF EDUCATION
Footnotes
[1] References to the hearing transcript are noted as “R.” References to exhibits admitted into evidence are noted as “Ex.”
[2] Following my appointment to this case, the parties moved to extend the case compliance date in this matter several times in order to accommodate the availability of the parties’ witnesses and to allow for adequate time for my review of the hearing record taken on the extensive issues raised in the parents’ due process complaint. In considering those requests, I weighed the cumulative impact of the relevant factors and found that the stated reasons for the extensions justified the delay in the resolution of the matter and were in accordance with the requirements of due process. Accordingly, requests for extensions of the case compliance date were granted (R. 78-80). See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5).
[3] Intellectual disability means significantly subaverage general intellectual functioning, existing concurrently with deficits in adaptive behavior and manifested during the developmental period, that adversely affects a student’s
[4] The term “free appropriate public education” means special education and related services that – (A) have been provided at public expense, under public supervision and direction, and without charge; (B) meet the standards of the State educational agency; (C) include an appropriate preschool, elementary school, or secondary school education in the State involved; and (D) are provided in conformity with the individualized education program required under section 1414(d) of this title. 20 U.S.C. § 1401(9); 34 C.F.R. § 300.17.
[8] NYCRR §§ 200.4(a)-(b). Under federal and State regulations, a school district is responsible to conduct a "full and individual initial evaluation" before the initial provision of special education and related services to a student with a disability. See 34 C.F.R. § 300.301(a); 8 NYCRR § 200.5(b)(1). Under
[5] Federal requirements do not prescribe specific types of assessments that must be conducted as part of an initial evaluation except that a classroom observation is a federal requirement for students with specific learning
[8] NYCRR §§ 200.5(g)(1), 200.16(d)(3); see also K.B. v. Pearl River Union Free Sch. Dist., 2012 WL 234392, at *5 (S.D.N.Y. Jan. 13, 2012) (noting that "a prerequisite for an IEE is a disagreement with a specific evaluation conducted by the district"); M.C. v. Katonah-Lewisboro Union Free Sch. Dist., 2012 WL 834350, at *11–12 (S.D.N.Y. Mar. 5, 2012); M.V. v. Shenendehowa Cent. Sch. Dist., 2013 WL 936438, at *6 (N.D.N.Y. Mar. 8, 2013); R.L. v. Plainville Bd. of Educ., 363 F. Supp. 2d. 222, 234-35 (D. Conn. 2005) (finding parental failure to disabilities. The terms psychological evaluation, social history and FBA are not defined in federal law or regulation.
[6] The regulations for initial evaluations of preschool students suspected of having disabilities largely incorporate by reference the rules for initial evaluations of school aged students suspected of having disabilities. See
[8] NYCRR §§ 200.16(c)(1)-(2).
[7] The time period for asserting claims based upon a disagreement with a school district's evaluation can be shorter than the mandatory three-year reevaluation period in some cases. See D.S., 357 F. Supp. 3d at 179.
[1] DOE’s Closing Statement, undated, 7 pgs. IMPARTIAL HEARING OFFICER None