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FINDINGS OF FACT AND DECISION
#191317
Record Close date: July 27, 2020
Hearing Requested By: Parent
Date of Hearings: 6/2/20 and 7/27/20
Hearing Officer: James McKeever, Esq.
APPEARANCESE::
For the Student:
, ESQ., Attorney
For the Department of Education:
, District Representative
PROCEDURAL HISTORY:
The parent filed the within DPC on December 3, 2019. I was not appointed to this matter until May 20, 2020, which I accepted at the request of SED and the NYC Hearing Office.
Compliance Date and Orders of Extension:
The parties requested several extensions of the compliance date, which included, but was not limited to, time to prepare for due process, witness availability, and to obtain the transcripts and close the record, inter alia. The
Order of Extension will be submitted to the District with the certification of the record.
Findings of Fact:
The parent’s requested funding for an Independent Neuropsychological evaluation at a cost not to exceed $5,000. The parent also requested an order for compensatory education services.
The District agreed that the parent was entitled to an IEE. The parent withdrew her request for compensatory education services and all other claims, without prejudice (Transcript dated July 27, 2020).
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. The District did not contest the parent’s request. Thus, I find that the parent is entitled to reimbursement and/or direct payment for the cost of the evaluation in the amount of $5,000.
ORDERED
(1) The Department shall reimburse the parent and/or directly pay
$5,000.00 for the cost of a private neuro-psychological evaluation.
(2) All other claims are withdrawn without prejudice.
Dated: New York, New York
July 28, 2029
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.