NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
FINDINGS OF FACT AND DECISION
190433,
Record Close date: August 15, 2020
Hearing Requested By: Parent
Date of Hearings: 11/20/20, 3/20/20, 4/20/20,
5/21/20, 6/29/20, 7/17/20 and
8/10/20
Hearing Officer: James McKeever, Esq.
APPEARANCESE:: For the Student:
, Advocate
For the Department of Education:
, District Representative
PROCEDURAL HISTORY:
The parent filed the within DPC on October 19, 2019. The parent alleged a denial of FAPE for the 2019-2020 school year based on the DOE’s failure to provide related services under the student’s IESP (Exhibit A).
A pendency order was issued on November 25, 2019.
Thereafter, the hearing was adjourned at the request of the parent advocate and the DOE in order to pursue settlement.
The parent filed an amended DPC on March 25, 2020, requesting reimbursement for a private OT evaluation.
Compliance Date and Orders of Extension:
The parties requested several extensions of the compliance date in order to pursue settlement and to prepare for the hearing. The Orders of Extension were served on the parties and submitted to the Hearing Office.
Findings of Fact:
The student’s received all of the related services under pendency during the 2019-2020 school year.
The only issue remaining was the parent’s request for reimbursement for a privately obtained OT evaluation at the cost of $500.00 (Tr. 41).
The District did not take a position on the parent’s request to be reimbursed for the IEE (Tr. 43).
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 the parent requested that the District fund an independent OT evaluation. The District did not contest the parent’s request. Thus, I find that the parent is entitled to reimbursement for the cost of the evaluation in the amount of $500.00
ORDERED
The Department shall reimburse the parent $500.00 for the cost of a private OT evaluation upon proof of payment for same.
Dated: New York, New York
August 25, 2020
James McKeever
James McKeever, Esq.
Impartial Hearing Officer
NOTICE OF RIGHT TO APPEAL
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.
Parent’s Exhibits:
A. Impartial hearing request, 10/27/19, eight pages
b. Amended impartial hearing request, 12/5/19, four pages
c. CSE IESP, 4/11/16, eight pages
d. CSE IESP, 11/12/19, 21
pages
e. Prior written notice, 11/22/19, three pages
f. District OT evaluation, 5/23/19, five page
g. IEE OT evaluation, 7/2/19, four pages
h. OT evaluation invoice, 5/19/20, one page
i. Parent affidavit, 7/17/20, three pages