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FINDINGS OF FACT AND DECISION
, , CASE # 190536
Record Close date: November 19, 2020
Hearing Requested By: Parent
Date of Hearings: 5/8/20, 7/15/20, 8/24/20, 9/21/20 and 10/6/20
Hearing Officer: James McKeever, Esq.
APPEARANCESE::
For the Student:
ESQ., Attorney — Student
For the Department of Education:
District Representative — DOE
PROCEDURAL HISTORY:
The parent filed the within DPC on October 30, 2019.
I was appointed to this matter on April 2, 2020, which I accepted at the request of SED and the NYC Hearing Officer to held assist with the backlog of cases.
Compliance Date and Orders of Extension:
The parties requested several extensions of the compliance date to pursue possible settlement and then to prepare for a hearing. The Orders of Extension were served on the parties and submitted to the District.
Findings of Fact:
The parent’s DPC requested funding for an independent FBA and BIP by at at of $1,650.00, and an independent neuropsychological evaluation to be conducted by at a rate not to exceed to $5,000 (Exhibit A, Tr. 30).
The District agreed that the received the parent’s request for the IEEs (Tr. 31). The District issued authorizations for IEE, but at a rate that was much lower the rates charged by the parent’s providers (Exhibits 1 and 2, 31).
The District did not cross-examine the parent’s witnesses (Tr. 40).
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 and the FBA and BIP. The District did not contest the parent’s request, but offered evaluations that at a lower rate. Based on the regulation referenced above, I find that the parent is entitled to reimbursement and/or direct payment for the cost of the requested evaluations. As such, the parent’s request for same is granted.
ORDERED
(1) The District shall reimburse the parent and/or directly pay $5,000.00 for the cost of a private Neuro-psychological evaluation; and
(2) The District shall reimburse the parent and/or directly pay $1,650.00 for the cost of a FBA and BIP.
Dated: New York, New York
November 18, 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. Request for impartial hearing, 10/30/19, five pages
b. Withdrawn
c. Withdrawn
d. Withdrawn
e. Request for independent neuropsychological evaluation with fax information, 10/30/19, four pages
f. Request for independent functional behavior assessment with fax confirmation, 4/19/18, four pages
g. Affidavit of, 9/24/20, two pages
h. Affidavit of parent, 9/28/20, three pages
i. Proposed affidavit of, undated, three pages
District’s Exhibits:
1. Authorization of BIP, 7/31/18, one page
2. Authorization of FBA, 7/31/18, one page