New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 534729 - NYC: 192116

FACT & DECISION

Case Number: Student Name: Date of Birth:

Hearing Requested By:

Date of Hearing:

Hearing Officer:

192116

REDACTED

REDACTED

Parent

August 7 2020

Jeffrey J. Schiro, Esq. l

NAMES AND TIITLES OF PERSONS WHO APPEARED ON AUGUST 7, 2020

For the Student:

For the District:

REDACTED Attorney (via telephone)

Parent (via telephone)

Interpreter (via telephone)

REDACTED

2 via telephone)

• • JURISDICTION - OVERVIEW OF ADMINISTRATIVE PROCEDURES

This i1npartial 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 parent in a due process complaint notice dated November 20, 2019. The complaint alleges that the New York City Depart1nent of Educatio11 (the ''DOE'') failed to fund an independent educational evaluation ('' IEE'') of the student; specifically a neuropsychological evaluation (Ex. P-A).1

When a student in New York is eligible for special education services, the IDEA calls for the creation of an individt1alized education program ('' IEP''), which is delegated to a local Committee on Special Education (the ''CSE'') tl1at 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. §§ 14 14 (d)( l )(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. §§ 122 l e-3, 1415 (e )-( t); 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 '"a ny 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.S(i)(l ); see also 20 U.S.C. §§ 141S(b)(6)-(7); 34 C.F.R.

1References to the hearing transcript are noted as "R." References to exhibits admitted into evidence are noted as ''Ex."

§§ 300.503(a)(l )-(2), 300.507(a)( 1).

An impartial hearing officer (""IHO'') typically condticts 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 traini11g; 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 verbati1n record of the proceed.ing. See 20 U.S.C. §§ 1415(f)(2 )(A), (h)(l)-(3); 34 C.F.R.

§ 300.521(a)(l )-(4); 8 NYCRR §§ 200.5Q)(3 )(v), (vii), (xii).

The lHO must render and transmit a final written decision in the matter to the parties not later than forty-five (45) days after the expiration of the resolution session period. See 34 C.F.R.

§§ 300.51O(b)(2), (c), 300.5 l 5(a); 8 NYCRR § 200.50)(5). A party may seek a specific extension of time of the 45-day time line, which the IHO may grant in accordance with State and federal regulations. See 34 C.F.R. § 300.5 l 5(c); 8 NYCRR § 200.50)(5). The decision of the IHO is binding upon both parties unless appealed. l ee N.Y. Educ. Law § 4404(1). A party aggrieved by the decision of an IHO may subsequently appeal to a State Review Officer ('"SRO'"). See N.Y. Educ. Law§ 4402(2); see also 20 U.S.C. § 1415(g)(l); 34 C.F.R. § 300.514(b)(l); 8 NYCRR

§ 200.5(k).

PROCEDURAL HISTORY

On July 1. 2020, the DOE appointed the undersigned to serve as the hearing officer in tl1is matter. A hearing on the 1nerits of the parent' s claim was held on August 7, 2020. 2 Appended to

2Followin g my appointment to this case, the parties 1noved to extend the case compliance date in this matter in order to allow for adequate time for my review of the hearing record taken on the extensive issues raised in the parent's due process complaint. In considering that request, I weighed the cumulative impact of the relevant facto.rs and found that the stated reason justified the delay in the resolution of the matter and was in accordance with the 4 this Findings of Fact and 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).

Ill. FACTUAL BACKGROUND

At the time of the November 20, 2019 due process complaint, the student was REDACTD years old and is diagnosed with an Autism Spectrum Disorder (·'As o ··), REDACTED (a genetic disorder) (Exs. P-1 at 8, P-J at I, P-K, P- M).

Dt1ring the 2019/20 school year, the student attended instruction at REDACTED the Bronx (Ex. P-A at I).The student's eligibility for special education a11d related services as a student with autism is not in dispute in this hearing (Exs. P-A, P-B at I, P-D at I, P-E at l ). See 8 NYCRR § 20 0. l (zz )( J ). 3

During a May 20 I 7 administration of the Stanford-Binet Intelligence Scales - 5th Edition REDACTED the student acl1ieved a Full Scale IQ of 41, within the Moderate Intellectual Disability range and well below the first percentile. On the Vineland Adaptive Behavior Scales -

3rd Edition, the student scored within the Low range, with an Adaptive Behavior Composite Standard Score of 38. below the first percentile (Ex. P-J at 4).

The DOE conducted a psychological update of the student in February 2018. The student's cognitive ability was measured using the Wechsler Intelligence Scales for Children - requirements of due process. Accordingly, the request for an extension of the case con1plia11ce date was granted (R.

7-8; Ex. IH0-1).

3Ai,tism means a developmental disability significantly affecting verbal and nonverbal con1munication and social interaction, generally evident before age 3, that adversely affects a student's educational performance. Other characteristics often associated with autism are engagement in repetitive activities and stereotyped move ments, resistance to environmental change or change in daily routines, and ttnusual responses to sensory experiences. The term does not apply if a student's educational performance is adversely affected primarily because the student has an emotional disturbance as defined in paragraph (4) of this subdivision. A student who manifests the characteristics of autistn after age 3 could be diagnosed as having autism if the criteria in this paragraph are otherwise satisfied.

Fifth Edition ('' WISC-V''). The student' s Full Scale IQ was ranked at the fourth percentile, classifying his overall intellectual ability as Very Low (Ex. P-H at 2).

The CSE convened on January 30. 2019 to develop an IEP for the student through January 2020. The CSE recommended that the student receive the majority of his instruction in an 8: I+1 special class in a specialized chool on a twelve (12) month basis. The CSE also recommended that the stt1dent receive related services of: specialized transportation; individual occupational therapy, two (2) times per week for thirty (30) minutes per session; parent counseling a11d training, one time per month for fifty (50) minutes; group speech/language therapy, one time per week for thirty (30) minutes; and individt1al speech/language therapy. one time per week for thirty (30) minutes (Ex. P-E at 8-9).

In a May 28, 2019 letter to the student's school and the CSE, counsel for the parent and student stated that the parent disagreed with the DOE's February 2, 2018 Psychological Update because it failed to appropriately and thoroughly assess the student in all areas related to his disability. On behalf of the parent, counsel requested that the DOE fund an IEE in the form of a neuropsychological evaluation to thoroughly assess the student's academic, social and emotional functional needs (Ex. P-D).

The CSE reconvened on October 18, 2019 to develop an IEP for the student through October 2020. The CSE recommended that the student receive the majority of his instruction i11 an 8:1+1 bilingual REDACTED special class in a specialize REDACTED School on a twelve (12) month basis. The CSE also recommended that the student receive related services of: individual occupational therapy, two (2) ti1nes per week for thirty (30) minutes per session; parent counseling and training, one time per month for fifty (50) tninutes; group speech/language therapy, one time per week for thirty (30) minutes; and individual speech/language therapy, one time per week for thirty (30) minutes (Ex. P-8 at 14-15). Specialized transportation of the student to and from school was discontinued (Ex. P-B at 18).

Tl1e parent claims that neither the school nor the CSE ever responded to her May 2019 request for an IEE for the student. This hearing ensued.

• • POSITIONS OF THE PARTIES
• • The DOE The DOE concedes that the student is entitled to an independent neuropsychological evaluation (R. 4).
• • The Parent The DOE should be directed to fund an independent neuropsychological evaluation of the student at public expense. The DOE failed to properly respond to the parent's May 2019 IEE request (R. 5; Exs. P-A, P-0).
• • FINDINGS OF FACT AND CONCLUSIONS OF LAW
• • Applicable Legal Standards - District and Independent Evaluations 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 educat ion, etn plo yment, and independent livi11g; and (2) to ensure that tl1e rights of students with disabilities and parents of such students are protected, see 20 U.S.C. § 1400(d)(l)(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 In New York, the CSE develops IEPs for eligible

4The tern1 ''free appropriate public educatio n" tneans special education and related services that -

• • have been provided at public expense, under public supervision and direction, and without c harge;

students. 1.<;ee N.Y. Educ. Law§ 4402(l)(b)(l). However, before determining that a student is eligible to receive a FAPE under the IDEA, the school district is responsible to "conduct a full and individual initial evaluation... before the initial provision of special education and related services to a child witl1 a disability." See 20 U.S.C. § l414(a)(1 )(a); 34 C.F.R. § 300.301(a).

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 recom1nendations, as well as information about the student's physical condit ion, social or cultural background, and adaptive behavior." 8 NYCRR § 200.4(c)(l); 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. §§ 14 14( a) ( l )(B)-(C); 34 C.F.R. §§ 300.301, 300.306; 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. 1. ee 34 C.F.R. § 3 00.3 0 1 (a); 8 NYCRR § 200.S(b)(l). Under federal regulation, an evaluation must assess the student "in all areas related to the suspected disability, inclt1ding, if appropriate, health, vision, hearing, social and emotional status, general intelligence, academic perfor1nance, 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

• • meet the standards of the State edl1cational agency;
• • include an appropriate preschool, elen1entary schoo l, or secondary school education in the State involved; and
• • 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.l 7.

examination; (ii) an individual psychological evaluatio n; (iii) a social history; (iv) an observation of the student in the student's learning environment (includ ing the regular classroom setting); and

(v) other appropriate assessments or evaluatio ns, including an FBA for a student whose behavior impedes his or her learning or that of others, as necessary to ascertain the physica l, mental, behavioral and emotional factors which contribute to the suspected disabilities. k<iee 8 NYCRR § 200.4(b)(I).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. 1.'iee 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. develop mental, and academic information about the stude nt, including information provided by the pa rent, that may assist in determin ing, a1nong other thing s, the content of the student's IEP.

See 20 U.S.C. § 141 4( b)(2)(A); 34 C.F.R. § 300.3 0 4(b)(l)(ii); 8 NYCRR § 20 0.4( b)(I); 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,.,_ ee 20 U.S.C. § l 414(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

5Federal 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 disabilities. The terms psychological evaluation, social history and FBA are not defined in federal law or regulation. 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 qt1alified examiner who is not employed by the public agency responsible for the education of the child in questio n." 34 C.F.R. §§ 300.502(a)(1 ), (3)(i). Parents who express a disagree1nent with an evaluation conducted by the district also have the right to seek an IEE co11ducted at public expense i11 some circumstances. See 34 C.F.R. § 300.502(b); 8 NYCRR §§ 200.S(g)(l ), 200.16(d)(3);.vee al:,o 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"); MC. v. Katonah-Lewisboro Union Free Sch. Dist., 2012 WL 834350, at *11-12 (S.D.N.Y. Mar. 5, 2012); M V. v.

Shenendehowa l?e nt. Sch. Di.YI., 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 disagree with an evaluation obtained by a public agency defeated a parent's claim for an I EE at public expense that was sought tor 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 cons idered by the public agency, if it meets agency criteria, in any decision made with respect to the provision of FAPE to the child."

6The regulatio11s 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.l 6(c)( I )-(2).

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 animpartial hearing to establish that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district crite ria. See 34 C.F.R. §§ 300.502(b)(2)(i)-(ii); 8 NYCRR §§ 200.S(g)( l )( 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.S(g)(l)(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.S(g)( l).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 sa1ne time refusing to consent to the school district's offer to conduct the same assessments.L'; ee D.S. v. Trumbull Bd. of Educ.. 357 F. Supp. 3d 166. 178 (D. Conn. 2019).

The burden of proof is on the school district during an impartial hea ring, except that a parent seeking tuitio11 reimbursement for a unilateral placement has the burden of proof regarding

7The time period for asserting clai1ns based upon a disagreement with a school district's evaluation can be

I I

the appropriateness of such placement. l';ee N.Y. Educ. Law§ 4404(l)(c); R.E. v. New York City Dep't o_ f Educ., 694 F.3d 167, 184-85 (2d Cir. 2012). In accordance with this burden, 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.,t.;;Jee Application o_f·a Student with a Disability (New York City Dep' t of Educ.), Appeal No. 19-10l at l O (SRO Dec. 6, 2019).

• • The Parent' s May 28, 2019 IEE Request The parent seeks, as relief, an Order directing the DOE to fund an independent neuropsychological evaluation of the student. For the reasons stated below, the parent' s request for relief is granted.

In a May 28, 2019 letter to the stude nt' s school and the CSE, counsel for the parent and student stated that the parent disagreed with the DOE's February 2, 2018 Psychological Update because it failed to appropriately and thoroughly assess the student in all areas related to his disability. On behalf of the parent, counsel requested that the DOE fund an IEE in the for1n of a neuropsychological evaluation to thoroughly assess the stude nt' s academic, social and emotional functional needs (Ex. P-D).

The hearing record contains no evidence, nor does the DOE assert, that after the parent requested an independent neuropsychological evaluation of the student at public expense, the DOE either ensured that an IEE was provided at public expense or initiated an impartial hearing to establish that its evaluation was appropriate. See 34 C.F.R. §§ 300.502( b)(2)( i) -( ii); 8 NYCRR §§ 200.S(g)(l)(iv), 200.16(d)(3). shorter than the 1nandatory three•year reevaluation period in some cases. See D.S., 357 F. Supp. 3d at 179.

In an August 6, 2020 letter, the student' s pediatrician recommended that he have a comprehensive neuropsychological evaluation to measure his cognitive ability and academic performance for purposes of school placement (Ex. P-M). The parent submitted persuasive evidence at the hearing that her proposed provider REDACTED possesses the experience and qualifications to conduct a comprehensive neuropsychological evaluation of the student (Ex. P-L).

VII. ORDER

NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS HEREBY ORDERED THAT:

Within thirty (30) days of the date of this Order, the DOE shall authorize the parent's receipt of an independent neuropsychological evaluation of the student, to be conducted by REDACTED at a cost not to exceed $6,000.00.

Dated: August 17, 2020

Isl Je_ffeey 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 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 plan 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.KOV.

DOCUMENTATION ENTERED INTO THE HEARING RECORD

PARENTS

• • Due Process Complaint Not ice/lmpartial Hearing Request, 11 /20/19, 3 pgs.
• • Individualized Education Program (IEP), 10/18 / 19, 21 pgs.
• • Student Pro ress Report, 11/7/19, 1 pg.
• • Letter to Principal) & from 5/28/19, 2 pgs.
• • Individualized Education Program (IEP), 1/30/19, 20 pgs.
• • Letter from parent, 12 /20 / 18, 1 pg.
• • NYC Office of School Health - Return to School Form, 12 /10/18, I pg.
• • NYC DOE Psychological Update, 2/2/18, 3 pgs.
• • YAI Psychosocial Evaluat ion, 7/31/17, 5 pgs.
• • YAI Psychological Evaluation, 5/1/17, 5 pgs.
• • NYU Human Genetics Pro ram Re ort, 4/12/12, 2 pgs.
• • Curriculum Vitae REDACTED undated, 5 pgs.
• • Letter from REDACTED 8/6/20, l pg.

SCHOOL DISTRICT

None

IMPARTIAL HEARlNG OFFICER

I. Order of Extension, 8/15/20, 1 pg.