New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 549307 - NYC: 205671

FINDINGS OF FACT AND DECISION

NAMES AND TITLES OF PERSONS WHO APPEARED:

For the Student:

[REDACTED]

("Parent Counsel")

For the Department of Education:

[REDACTED]

("District Counsel")

INTRODUCTION AND PROCEDURAL HISTORY

A due process complaint ("DPC") was filed by the Parent on or about January 4, 2021 pursuant to the Individuals with Disabilities Education Act ("IDEA") and Article 89 of the New York State Education Law. (Ex. 1) The DPC concerns the special education program of the Student, alleging the District's failure to provide the Student with a free appropriate public education ("FAPE") for the 2020-21 school year ("School Year").

The case was assigned to the undersigned Impartial Hearing Officer on November 17, 2021, and a Prehearing Conference was held on December 10, 2021.

On November 2, 2021, the Parents submitted a corrected DPC ("First Amended DPC").

On January 3, 2022, the District submitted a Motion to Dismiss ("MTD"). (Ex. 2)

On January 14, 2022 the undersigned hearing officer filed an Order of Dismissal, which was subsequently appealed by the Parents.

On [REDACTED], State Review Officer ("SRO") Decision [REDACTED] vacated and remanded the Order of Dismissal to the undersigned impartial hearing officer to rule on the Parent's request to amend the DPC, to reconsider the MTD taking into account the parent's response, and if necessary to consider the parent's request for publicly funded Independent Educational Evaluations ("IEE(s)") and compensatory education services.

On July 29, 2022, the Parents filed a second amended due process complaint ("Second Amended DPC"). The First Amended DPC and Second Amended DPC shall collectively be referred to as the "Amended DPCs"). (Ex. 3) Also on July 29, 2022, the Parents filed an Opposition to Respondent's Motion to Dismiss ("Opposition"). (Ex. 4)

On October 3, 2023, the undersigned hearing officer filed an Interim Order ordering that the claim for IEEs at public expense is permitted to proceed and the Amended DPCs are accepted with respect to the claim for IEEs at public expense only.

JURISDICTION

The due process hearing was held, and a decision in this matter is being rendered pursuant to the Individuals with Disabilities Education Act (hereinafter, "IDEA"), 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq., and the New York State Education Law, Educ. Law § 4404 et seq., and its implementing regulations, 8 NYCRR § 200.5 et seq.

ISSUES AND ARGUMENTS

Parent Case:

The Second Amended DPC requests comprehensive independent evaluations of the Student.

The Second Amended DPC identifies and expresses disagreement with the following prior evaluations conducted by the District: a psychoeducational evaluation conducted in 2019 as well as teacher evaluations conducted for speech and language, physical and occupational therapy. (Ex. A-2)

The Parent is requesting an order for the District to pay for IEEs for psychoeducational, occupational, physical, and speech therapy evaluations. (June T 52)

The Parent did not present any evidence or witnesses.

District Case:

The District's position is that that the Parents did not disagree with a specific District evaluation. A general disagreement with all DOE evaluations is not a disagreement with a specific District evaluation, and therefore the IEEs should not be granted in this matter. (June T 59)

The District did not present any evidence or witnesses.

SUMMARY OF APPLICABLE LAW

The IDEA is a comprehensive statutory framework established by the United States Congress to ensure that students with disabilities are afforded a FAPE. 20 U.S.C. §1400(d)(1)(A); see Schaffer v. Weast, 126 S. Ct. 528 (2005); Bd. of Educ. v. Rowley, 458 U.S.176 (1982); Frank G. v. Bd. of Educ., 459 F.3d 356 (2d Cir. 2006). A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP, which is reasonably calculated to enable the student to receive educational benefit. See Rowley; 20 U.S.C. § 1401(9)(D); 34 C.F.R. § 300.17; see 20 U.S.C. § 1414(d); 34 C.F.R. § 300.22. The student's recommended program must also be provided in the least restrictive environment. 20 U.S.C. § 1412(a)(5)(A); 34 C.F.R. § 300.114(a)(2); 8 NYCRR 200.6(a)(1).

In Endrew F. v. Douglas County School District, 580 U.S. 999, 14 (2017), the Court held that, "[t]o meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances, as a focus on the particular child is at the core of the IDEA. The instruction offered must be "specially designed" to meet a child's "unique needs" through an "individualized education program." §§1401(29), (14) (emphasis added), to reflect the fact that a contemplated IEP must be focused on the "particular child that is at the core of the IDEA."

Pursuant to New York Education Law §4404(1)(c), the board of education shall have the burden of proof, the burden of persuasion, and the burden of production in impartial hearings except for instances where the parent is seeking tuition reimbursement for a unilateral parental placement and in those cases the parent shall have the burden of persuasion and the burden of production as to the appropriateness of the placement. The burden of proof in matters such as this shall only be met upon a fair preponderance of the evidence. The preponderance of the evidence standard requires the trier of fact to find that the existence of a fact is more probable than its nonexistence. Concrete Pipe & Products of California, Inc. v. Construction Laborers Pension Trust for Southern California, 508 U.S. 602, 622 (1993). In other words, preponderance of the evidence is evidence that is more convincing than the evidence offered in opposition to it. Greenwich Collieries v. Director, Office of Workers' Compensation Programs, 990 F. 2d 730, 736 (3rd. Cir. 1993), aff'd, 512 U.S. 246 (1994).

The decision in this case rests on a determination of the three-pronged test set forth by the United States Supreme Court, which provided that a board of education may be required to pay for educational services obtained for a child by the child's parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim. School Committee of the Town of Burlington v. Dept. of Educ., Massachusetts, 471 U.S. 359 (1985); Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993).

Under the second prong of the Burlington/Carter test, the parents bear the burden of proving the appropriateness of the Residential Placement. See M.S. v. Board of Education of the City of Yonkers, 231 F.3d 96, 104 (2d Cir. 2000); Application of a Child with a Disability, Appeal No. 99-51; Application of a Child with a Disability, Appeal No. 94-29; Application of a Child with a Disability, Appeal No. 95-57. In order to meet that burden, the parents must show that Residential Placement offered an educational program designed to meet the Student's special education needs. School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985); Application of a Child with a Disability, Appeal No. 99-51; Application of a Child with a Disability, Appeal No. 98-76; Application of a Child with a Disability, Appeal No. 94-29. A Residential Placement is only appropriate if it provides education instruction specifically designed to meet the unique needs of a handicapped child. Gagliardo v. Arlington Central School District, 489 F.3d 105 (2d Cir. 2007).

Regarding the placement of students with disabilities, N.Y. Comp. Codes R. & Regs. tit. 8 § 200.6(a)(3) states: "Students with disabilities placed together for purposes of special education shall be grouped by similarity of individual needs as defined in section 200.1(ww) of this Part, in accordance with the following: (i) The range of academic or educational achievement of such students shall be limited to assure that instruction provides each student appropriate opportunities to achieve his or her annual goals. The learning characteristics of students in the group shall be sufficiently similar to assure that this range of academic or educational achievement is at least maintained. (ii) The social development of each student shall be considered prior to placement in any instructional group to assure that the social interaction within the group is beneficial to each student, contributes to each student's social growth and maturity, and does not consistently interfere with the instruction being provided. The social needs of a student shall not be the sole determinant of such placement. (iii) The levels of physical development of such students may vary, provided that each student is provided appropriate opportunities to benefit from such instruction. Physical needs shall be considered prior to determining placement to assure access to appropriate programs. The physical needs of the student shall not be the sole basis for determining placement. (iv) The management needs of such students may vary, provided that environmental modifications, adaptations, or, human or material resources required to meet the needs of any one student in the group are provided and do not consistently detract from the opportunities of other students in the group to benefit from instruction."

Regarding least restrictive environment, N.Y. Comp. Codes R. & Regs. tit. 8 § 200.1(cc) states that "Least restrictive environment means that placement of students with disabilities in special classes, separate schools or other removal from the regular educational environment occurs only when the nature or severity of the disability is such that even with the use of supplementary aids and services, education cannot be satisfactorily achieved. The placement of an individual student with a disability in the least restrictive environment shall: (1) provide the special education needed by the student; (2) provide for education of the student to the maximum extent appropriate to the needs of the student with other students who do not have disabilities; and (3) be as close as possible to the student's home."

Parents have the right to have an independent educational evaluation ("IEE") conducted at public expense if the parent expresses disagreement with an evaluation conducted by the District and requests that an IEE be conducted at public expense (34 CFR 300.502[b]; 8 NYCRR 200.5[g][1]; see K.B. v Pearl Riv. 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"]; 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]).

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 (34 CFR 300.502[b][2][i]-[ii]; 8 NYCRR 200.5[g][1][iv).

ANALYSIS AND DECISION

The only issue for adjudication for purposes of this hearing is the Parent's claim for IEEs. The Second Amended DPC identifies and expresses disagreement with prior evaluations conducted by the District.

In response to the Parent's IEE claim, the District did not provide an IEE at public expense and did not initiate an impartial hearing in this regard. The District Counsel did not dispute that the prior District evaluations identified by the Parent were conducted.

Based on the foregoing, I find that the Student is entitled to IEEs at public expense for psychoeducational, occupational, physical and speech therapy evaluations.

ORDER

Based upon the above Findings of Fact and Decision, it is hereby ORDERED THAT: 1) The District shall fund the following IEEs for the Student at reasonable market rates:

Neuropsychological, Speech Language, Physical Therapy, Occupational Therapy. 2) After the IEEs are conducted, the District shall promptly convene a CSE meeting in order to review the IEEs and consider any changes to the Student's IEP.

SO ORDERED.

DATED: August 14, 2023

/s/ Sebastian A. Weiss, 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.

APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD

PARENT EXHIBITS

None.

DOE EXHIBITS

IHO EXHIBITS