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Special Education Law
DECISIONParent PrevailedIHO Case No. 552469

Impartial Hearing Decision

March 14, 2022·and [REDACTED], Request for an Impartial Hearing pursuant to the Regulations of the Commissioner of the

NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.

In the Matter of [REDACTED] School District and [REDACTED], Request for an Impartial Hearing pursuant to the Regulations of the Commissioner of the State Education Department, 8 N.Y.C.R.R. §200.5

SED Case Identifier 552469

Findings of Fact and Decision

On June 4, 2021, I was appointed impartial hearing officer by the Board of Education of the [REDACTED] School District (the “District”) pursuant to the Regulations of the Commissioner of the State Education Department (8 N.Y.C.R.R. §200.5), in the above matter (IHO XIII).[1]

The District, through counsel, requested an impartial hearing pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. §1415 (the “IDEA”) by a Due Process Complaint Notice dated May 27, 2021 (the “Complaint”). In the Complaint, the District challenges a request made by [REDACTED] and [REDACTED], the parents of [REDACTED], for an independent educational evaluation (“IEE”) at public expense (P-5 at 16).

Procedural History

I scheduled a prehearing conference for June 11, 2021. I granted [REDACTED]’s parents’ request for an adjournment of this date on the grounds that they had retained counsel who needed time to prepare. I conducted a prehearing conference on June 22, 2021. This conference was conducted on the record, and a transcript was prepared. After the conference, I entered a written order with respect to scheduling and the parties’ joint request for an extension of the compliance date (IHO XIV).

On July 15, counsel for the District forwarded two subpoenas for my consideration and signature (IHO V). The District also filed a Motion to Preclude the Introduction of the Neuropsychological Evaluation obtained by the Parent and a Motion to Limit the Scope of the Hearing (IHO I, II, III, IV). The Parents’ time to respond to the District’s two motions and to interpose any objections to the District’s subpoenas was extended to August 9, 2021. The August 2 hearing date was adjourned to permit the above briefing schedule (IHO XV). Counsel requested additional adjournments of hearing dates due to the availability of witnesses and an extension of the compliance date, all of which were granted, after due consideration, in written orders (IHO XVI, XVII).

By Decision and Order on School District’s Evidentiary Motions and Parents’ Objections to School District’s Subpoenas, I denied the District’s motions (IHO XVIII). I signed revised subpoenas (IHO XII).

A [REDACTED] prehearing conference was conducted on September 14, 2021, and a written conference summary was prepared and forwarded to counsel (IHO XIX). Additional scheduling orders were issued, and extensions of the compliance date were requested, considered and granted (IHO XX, XXI, XXII, XXIII, XXIV). The reasons for the extension requests and the granting of the extension requests were particular to this case and are described in detail in the written orders. A final request for an extension of the compliance date was made by counsel at the conclusion of the last day of hearing. The reason for this request was to permit the preparation of the transcript and the submission of post-hearing briefs. After review of the record, I determined that the factual presentations and legal arguments set forth in the record were sufficient for my consideration in order to render a decision in this matter and that post-hearing submissions were unnecessary and would serve to further prolong resolution of this case. Since I denied the parties’ requests to file post-hearing submissions, I denied the final extension request for the reasons elaborated in the Order Denying Extension Request (IHO XXV).

The hearing was conducted on September 24, November 9, November 10, and November 22, 2021, and February 1 and February 15, 2022. The record closed on March 7, 2022 after the hearing officer’s receipt of the entire transcript and a printable copy of Parent’s Exhibit 13 and the distribution of the final extension order (IHO XXV); the Actual Record Close Date is March 7, 2022.

Findings of Fact

  • • [REDACTED] is an [REDACTED]-year-old boy who resides in the District and attends the District’s elementary school. D-A at 1.
  • • In January and February 2017, when [REDACTED] was in [REDACTED], the District conducted [REDACTED]’s initial evaluation to determine whether he was a child in need of special education and related services. Tr. 523; P-6 at 2.
  • • The 2017 test results include, in part, [REDACTED]’s scores on the WISC-V (Full Scale IQ – 108; Fluid Reasoning Index – 106; Processing Speed Index – 92; Verbal Comprehension Index – 113; Visual Spatial Index – 105; and Working Memory Index – 115); WIAT-III (Alphabet Writing Fluency – 61st %ile; Early Reading Skills – 32nd %ile; Listening Comprehension – 34th %ile; Math Problem Solving – 34th %ile; Mathematics Composite – 27th %ile; Numerical Operations – 27th %ile; Oral Expression – 12th %ile; Oral Language Composite – 47th %ile; Spelling – 32nd %ile; and Written Expression – 47th %ile); DEAP-Diagnostic Evaluation of Articulation and Phonology (Articulation – 22 [scaled score – 1st %ile]); and Beery VMI, Sixth Edition (VMI – 27th %ile; Motor Coordination Subtest – 13th %ile; Visual Perceptual Subtest 16th %ile). D-A at 2-4.
  • • Starting when [REDACTED] was in [REDACTED] in 2017, [REDACTED]’s father has informed District personnel that there was a history of dyslexia in [REDACTED]’s family. Tr. 521, 523, 602, 615.
  • • The CSE determined that [REDACTED] was an eligible student and classified his disability as other health impairment. Tr. 526; P-5 at 6; P-6 at 2.
  • • During the 2018-2019 school year, when [REDACTED] was a [REDACTED]-grade student, he was diagnosed with [REDACTED] and an [REDACTED]. Tr. 512. [REDACTED] is a condition that “[REDACTED] of the [REDACTED] or the [REDACTED] [REDACTED]” Tr. 518; see also Tr. 511, 517. [REDACTED] experiences a form of [REDACTED] known as [REDACTED] [REDACTED], which is [REDACTED] [REDACTED]. Tr. 511-512.
  • • [REDACTED] “can cause [REDACTED” that can impact children [REDACTED]. Tr. 579.
  • • [REDACTED] also impacts muscle tone (specifically causing [REDACTED]. In addition, [REDACTED] is associated with [REDACTED]. Tr. 515-516, 517.
  • • The [REDACTED] can result in a complex form of [REDACTED] which “can cause [REDACTED].” Tr. 581; see also P-8.
  • • Dr. [REDACTED] [REDACTED] is a physician in and the vice chair of the Department of [REDACTED]. Tr. 574. He specializes in [REDACTED]. Tr. 574. He has treated [REDACTED] since March 2020. Tr. 577, 584.
  • • Dr. [REDACTED] explained that early diagnosis and treatment are important because [REDACTED] Tr. 583. Dr. [REDACTED] has evaluated [REDACTED] to [REDACTED]. Tr. 577.
  • • [REDACTED]’s father informed Dr. [REDACTED] [REDACTED], a certified school psychologist employed by the District, and [REDACTED]’s teachers and providers, of the diagnoses, and he discussed the diagnoses, and the possible implications of the diagnoses for [REDACTED]’s learning, at CSE meetings. Tr. 512-513, 514-515, 517-518; see also P-12 at 1, 3.
  • • As [REDACTED] has moved from grade to grade in elementary school, his parents have closely monitored his struggles in school. Tr. 515.
  • • The District convened an IEP “Annual Review” meeting for [REDACTED] on April 10, 2019. D-A. [REDACTED]’s father attended this meeting. D-A at 1. Dr. [REDACTED] participated in this meeting as chairperson. Tr. 197, 205, 214, 296; D-A at 1.
  • • The CSE determined that [REDACTED]’s disability continued to be classified, for the purposes of IDEA eligibility, as other health impairment. D-A at 1, D-D at 1.
  • • The IEP developed at the April 2019 meeting summarizes test results from January and February 2017 (see above) and June 2015. D-A at 2-3. The only new testing considered at the meeting (and specified on the IEP) was a Physical Therapy Re-Evaluation dated February 4, 2019. P-A at 2; P-J.[2]
  • • [REDACTED] [REDACTED], a licensed physical therapist who was an independent contractor retained by the District to provide physical therapy to students, provided physical therapy to [REDACTED] during his [REDACTED] through [REDACTED] grade years. Tr. 392-394, 396, 402. She provided physical therapy to [REDACTED] for 30 minutes per week in a group of three students. Tr. 452.
  • • Ms. [REDACTED] conducted physical therapy reevaluations of [REDACTED] in February 2019 and January 2020. Tr. 404, 407; D-J, D-K. These reevaluations relate to [REDACTED]’s gross motor functioning in the school setting. Tr. 410.
  • • At the April 2019 meeting, Ms. [REDACTED] reported on [REDACTED]’s progress in physical therapy and reviewed her February 2019 report. Tr. 219, 221, 418-419; D-A at 5, D-J.
  • • Ms. [REDACTED]’s 2019 report includes a clinical assessment that states that [REDACTED] sat down and stood up from a chair and the floor “independently,” navigated the classroom and school hallways “independently and safely,” had “normal sitting and standing balance,” and was able to engage successfully in walking, jumping, exercise, and ball catching, throwing, and dribbling activities. D-J at 1.
  • • At the meeting, [REDACTED]’s [REDACTED] grade teacher reported that [REDACTED] was performing on grade level in all academic areas. Tr. 218; D-A at 5.
  • • At the meeting, [REDACTED]’s father expressed concerns about [REDACTED]’s gross motor skills, particularly with respect to balance, coordination and low muscle tone as well as low muscle tone in his mouth muscles and reported that [REDACTED] was falling and tripping, losing his balance, falling out of his chair, and becoming fatigued when he writes. Tr. 222-223, 422; D-A at 5-6.
  • • The April 2019 IEP includes only one annual goal for [REDACTED]: to participate in “general conditioning exercises” in order to increase his endurance to engage in “classroom activities for longer periods of time.” D-A at 7.
  • • The CSE recommended that [REDACTED] receive physical therapy in a small group for one 30-minute session per week for the 2019-2020 school year. D-A at 7.
  • • [REDACTED] [REDACTED] was [REDACTED]’s [REDACTED] grade teacher during the 2019-2020 school year. She is a certified general education teacher. Tr. 121, 150.
  • • There were approximately 24 students in [REDACTED]’s class. Tr. 143.
  • • [REDACTED] was a cooperative student who did not demonstrate negative behaviors. His academic performance was “average.” Tr.151, 157, 160; D-M.
  • • Ms. [REDACTED] conducted a reading “running record” three times per school year in order to determine whether students needed additional help in reading. Tr. 126-129. Ms. [REDACTED] also collected data on students’ reading performance (both with respect to fluency and comprehension) during small group instruction. Tr. 131.
  • • Testimony or documentary evidence was not offered as to [REDACTED]’s results on the above assessments or data collected as to [REDACTED]’s reading performance.[3]
  • • The District was due to conduct D.W’s triennial evaluation in 2020. Tr. 301; P-5 at 10.
  • • [REDACTED]’s parents consented to the District’s reevaluation of [REDACTED] Tr. 599, 614; D-P at 3.[4]
  • • District personnel did not list “educational evaluation” on the consent form. However, the Prior Written Notice document states that a “Psychological Evaluation” “may also include an assessment of basic achievement skills.” D-P at 1; D-P at 3. See also Tr. 614-615.
  • • During or around January 2020, [REDACTED]’s father spoke with Dr. [REDACTED] about [REDACTED] being “overdue” for reevaluation by the District and the District being “in the process of doing his reevaluation.” Tr. 598.
  • • School closures as of March 13, 2020, due to the COVID-19 pandemic restrictions, impacted the completion of evaluations and reevaluations that had not been completed by March 13, 2020. Tr. 227-228; D-E at1; D-L at 1.
  • • As of March 2020, the only evaluation conducted as part of [REDACTED]’s triennial evaluation was Ms. [REDACTED]’s physical therapy reevaluation. District personnel did not conduct any other evaluations of [REDACTED] Tr. 524.
  • • In spring of 2020, in advance of a May 2020 CSE meeting, Dr. [REDACTED] acknowledged, in a conversation with [REDACTED]’s father, that [REDACTED]’s reevaluation had not been completed. Tr. 524; see also P-E at 1. Dr. [REDACTED] asked [REDACTED]’s father to waive the reevaluation; he refused, but asked if testing could be conducted remotely. Dr. [REDACTED] responded that the District had determined not to conduct evaluations and reevaluations remotely. Tr. 525-526, 616.
  • • Dr. [REDACTED] explained to [REDACTED]’s father that when school reopened, she would conduct [REDACTED]’s reevaluation. Tr. 227-228.
  • • At the hearing, Dr. [REDACTED] opined that [REDACTED]’s reevaluation should be conducted in-person, rather than virtually, in order to establish rapport between herself and [REDACTED] and because the administration of certain subtests required the use of hands-on manipulatives. Tr. 246, 253.
  • • Dr. [REDACTED], in her testimony, acknowledged that New York State Education Department guidance to school districts indicated that school districts continue, among other things, to conduct evaluations of students with disabilities during COVID. Tr. 303-304.
  • • At no time did [REDACTED]’s parents waive [REDACTED]’s triennial evaluation. Tr. 524-525.
  • • The CSE convened on May 21, 2020 for a “Reevaluation/Annual Review.” D-B at 1. Dr. [REDACTED] again participated in the meeting as chairperson, and [REDACTED]’s father was in attendance. D-B at 1; Tr. 231.
  • • District schools remained closed at the time of this meeting, and the meeting was conducted via videoconference. Tr. 231-232.
  • • The CSE determined to continue to classify [REDACTED]’s disability as other health impairment. D-B at 1, D-E at 1.
  • • The IEP developed at the May 2020 meeting summarizes results of the 2015 and 2017 testing of [REDACTED] D-B at 2-5. The IEP also references a Physical Therapy Re-Evaluation dated January 14, 2020 and a Social History Update dated January 2, 2020, which was completed by [REDACTED]’s father. D-B at 2, D-K, P-12.
  • • At the May 2020 meeting, Ms. [REDACTED] reported that [REDACTED] was performing on grade level and that he was falling in school. Tr. 162, 234-235, 526-527; D-B at 5, 6.
  • • Ms. [REDACTED] reported that [REDACTED] was able to navigate the school building independently. Tr. 236, 435; D-B at 5-6.
  • • Ms. [REDACTED]’s January 2020 Physical Therapy Re-Evaluation noted that [REDACTED] demonstrated “normal sitting and standing balance,” navigated the classroom and school building “independently and safely,” and demonstrated “good ball handling skills” and “good leg coordination” while jumping, kicking and running. D-K at 1.
  • • [REDACTED]’s father informed the CSE that [REDACTED] was undergoing an evaluation for [REDACTED] and had been diagnosed with an [REDACTED] diagnosis and benign [REDACTED] on his [REDACTED]. D-B at 5; see also P-12 at 1, 3.
  • • [REDACTED]’s father expressed concerns about [REDACTED]’s muscle tone, oral motor issues, balance, and falling. Tr. 437, 526-527; D-B at 5. He also explained that [REDACTED]’s falling was related to [REDACTED]. Tr. 527.
  • • [REDACTED]’s father also expressed his concerns about [REDACTED]’s family history of dyslexia and the “potential” for [REDACTED] to experience learning disabilities. Tr. 527-528, 615.
  • • The IEP contains only two goals. These are labelled “Motor Skills” goals and are related to jumping rope and ball handling skills. D-B at 7.
  • • The CSE recommended that [REDACTED] continue to receive physical therapy, in a small group of five students, for one 30-minute session per week for the 2020-2021 school year. D-B at 7.
  • • No academic goals were developed at this CSE meeting. Tr. 526.
  • • The District’s schools reopened for in-person instruction in September 2020. Tr. 302.
  • • [REDACTED] [REDACTED] was [REDACTED]’s [REDACTED] grade teacher during the 2020-2021 school year. Tr. 23, 28-29. She is a certified general education teacher. Tr. 27, 77.
  • • There were 23 students in the [REDACTED]-grade class, approximately four of whom were students with IEPs. Tr. 39.
  • • Ms. [REDACTED] conducted the NWEA Benchmark Assessment for the students in her classroom. This assessment was conducted in the fall, winter and spring of the 2020-2021 school year and covered reading and math. Tr. 42, 51. Ms. [REDACTED] also utilized Reading Writing Records, which assess reading accuracy, fluency and comprehension, and math unit tests. Tr. 42-43.
  • • Testimony or documentary evidence was not offered as to [REDACTED]’s results on the above assessments.
  • • In Ms. [REDACTED]’s class, [REDACTED] was “a standout student for hard working,” did not “seem” like he was “struggling” and was not impacted by distractions. Tr. 44, 70-71. He did not demonstrate negative behaviors. Tr. 46.
  • • [REDACTED] enjoyed talking about books and benefited from small group instruction and group discussion. Tr. 49.
  • • [REDACTED] demonstrated difficulties with writing, including spelling and grammar. Tr. 84-86.
  • • During the 2020-2021 school year, [REDACTED] would fall almost daily in school. These falls occurred when he was sitting (and would fall out of his chair), while he was walking and when playing on the playground. Tr. 47-48, 70-71, 82-83.
  • • [REDACTED]’s father discussed his concerns about [REDACTED]’s reading, writing and math progress with Ms. [REDACTED], and learned that Ms. [REDACTED] was providing daily additional math help to [REDACTED] Tr. 529-530.
  • • [REDACTED]’s father was particularly concerned about [REDACTED]’s writing, which contained spelling errors, word reversals, vocabulary errors and grammatical errors (including lack of capitalization and punctuation). Tr. 530-531.
  • • Dr. [REDACTED] administered the Kaufman Assessment Battery for Children, [REDACTED] Edition, to [REDACTED] in early March 2021. D-L at 1.
  • • By letter dated and emailed to [REDACTED] [REDACTED], the District’s Director of Pupil Personnel Services, on April 19, 2021, [REDACTED]’s parents requested an IEE at public expense from the District. P-2. In this letter, [REDACTED]’s parents stated that they disagreed with “the scope of school evaluations that have been conducted and are being conducted,” which they stated were “not sufficient to provide a diagnosis for [[REDACTED]],” including an “evaluation of dyslexia as well as other possible diagnosis.” P-2; P-4 at 1.
  • • [REDACTED]’s father requested the IEE, specifically a neuropsychological evaluation because he was concerned about [REDACTED]’s progress in reading, writing and math, had concluded that [REDACTED] needed additional educational interventions and/or services in school and because [REDACTED]’s medical team at NYU was recommending a neuropsychological evaluation of [REDACTED] Tr. 519, 529-532; P-6 at 2; P-8.
  • • Dr. [REDACTED] recommended that [REDACTED] undergo a comprehensive neuropsychological evaluation because the tests administered during such an evaluation would reveal areas of weakness that “would respond [to] further targeted therapy in ways that surgery itself does not necessarily correct.” Tr. 583.
  • • [REDACTED]’s father informed District personnel that the NYU team was recommending a neuropsychological evaluation of [REDACTED] Tr. 520.
  • • When the District did not respond to [REDACTED]’s parents’ IEE request, [REDACTED]’s father decided to retain Dr. [REDACTED] to conduct a neuropsychological evaluation of [REDACTED] Tr. 537-538, 607.
  • • Dr. [REDACTED] conducted a classroom observation of [REDACTED] on May 7, 2021. Tr. 249-250, 303, 306; D-L at 3.
  • • On or about May 19, 2021, Dr. [REDACTED] provided a copy of her Psychological Reevaluation report to [REDACTED]’s parents. Tr. 307-308.
  • • In connection with the reevaluation, Dr. [REDACTED] had obtained feedback from [REDACTED]’s classroom teacher as to [REDACTED]’s academic performance. Tr. 249-250. Ms. [REDACTED] reported that [REDACTED] was on grade level in all academic areas, worked hard, and understood what he read. Tr. 259; D-L at 2. During the classroom observation, [REDACTED] fell. Tr. 263. Neither Dr. [REDACTED] nor Ms. [REDACTED] had concerns about [REDACTED]’s social or emotional functioning. Tr. 276.
  • • Dr. [REDACTED] had administered the Kaufman because it is a “child-friendly” and reliable measure of cognitive skills. Tr. 251, 261, 507-508; D-L at 3. [REDACTED] attained a score of 112, which was at the 79th percentile and in the average range. D-L at 3-4. [REDACTED] attained scaled scores on the subtests in the average range, with the lowest score on story completion, which was in the 37th percentile. D-L at 3-4.
  • • Dr. [REDACTED] concluded that [REDACTED]’s cognitive skills were “intact” and that he was a “socially and emotionally well-adjusted student.” Tr. 277.
  • • Dr. [REDACTED]’s evaluation did not test [REDACTED]’s academic strengths and weaknesses nor measure [REDACTED]’s present levels of academic performance. Tr. 508.
  • • Dr. [REDACTED] did not administer any educational testing or conduct an educational evaluation of [REDACTED] during 2020 nor in advance of the June 2021 CSE meeting. Tr. 298, 308-309, 310-311, 350-351; see also D-E at 1.
  • • No other CSE personnel administered any educational testing or conducted an educational evaluation of [REDACTED] during 2020 nor in advance of the June 2021 CSE meeting. Tr. 308-309, 310, 350-351.
  • • In late May or early June, the District denied [REDACTED]’s request for an IEE at public expense. Tr. 532, 536.
  • • Sometime in early June 2021, Dr. [REDACTED] discussed her Reevaluation report by telephone with [REDACTED]’s father. She reviewed the test results, the classroom observation and her findings with him. Tr. 287-288, 290, 308.
  • • [REDACTED]’s father listened to Dr. [REDACTED]’s review of her report and told her that he was obtaining a neuropsychological evaluation of [REDACTED] because he continued to have concerns about [REDACTED]’s “academic[s],” that he wished to wait until after the evaluation was completed to have a CSE meeting, and that he was “open” to any testing that the District needed to conduct. Tr. 290, 308; D-F at 1.
  • • [REDACTED]’s father asked that the June 2021 CSE meeting be postponed until Dr. Sharone Gilbert’s report was available; the District denied this request. Tr. 542.
  • • The CSE convened for an “Annual Review” for [REDACTED] on June 9, 2021. D-C at 1. Dr. [REDACTED] participated in this Review. Tr. 268; D-C. She presented information relating to her Psychological Reevaluation report. Tr. 285, 287-288.
  • • [REDACTED]’s father and mother participated in the June 2021 meeting. D-C at 1.
  • • The IEP developed at the June 2021 meeting recites the results of the 2015 and 2017 testing. P-C at 2-5. The IEP also references Dr. [REDACTED]’s classroom observation conducted on May 7, 2021 and Dr. [REDACTED]’s Psychological Reevaluation. D-C at 2; D-L.[5]
  • • At the meeting, Ms. [REDACTED] reported on [REDACTED]’s efforts and enthusiasm in the classroom as well as her observations that he fell frequently. Tr. 70-71, 289. She also reported that [REDACTED] “seem[ed]” to be approaching grade level or on grade level academically. Tr. 73, see also Tr. 286; D-N.
  • • Ms. [REDACTED] also participated in the meeting. Tr. 441. She reported that [REDACTED] was “functioning independently safely in the school.” Tr. 442.
  • • The meeting participants also discussed that [REDACTED] was falling more often out of his chair in the classroom, as well as falling when he was playing sports, and that he needed continued physical therapy.[6] Tr. 444-445, 455-456, 458.
  • • At the meeting, [REDACTED]’s father expressed concerns about [REDACTED]’s academic performance, the family history of dyslexia, and the “potential” for [REDACTED] to experience learning disabilities. Tr. 446, 615.
  • • The IEP includes only two goals. These goals are labelled “Motor Skills” and relate to core strength, balance and coordination exercises and running, skipping and galloping activities. D-C at 7.
  • • No academic goals were developed at this CSE meeting. Tr. 526.
  • • The CSE recommended that [REDACTED] receive physical therapy, in a small group of five students, for one 30-minute session per week. D-C at 7.
  • • At the meeting, [REDACTED]’s parents stated that they were pursuing testing of [REDACTED] Tr. 73, 289; D-F at 2. The CSE planned to reconvene when the testing was completed and the results were provided to the CSE. Tr. 86-87, 89, 368, 544; D-F at 1-2.
  • • Dr. [REDACTED], a licensed neuropsychologist, conducted a neuropsychological evaluation of [REDACTED] on June 8, 10 and 18, 2021 under COVID protocols, including distancing and masking. Tr. 634, 643-644; P-6 at 3, P-13.
  • • [REDACTED]’s parents informed Dr. [REDACTED] that they had observed [REDACTED] struggle with comprehension, critical thinking skills, and multi-step problem-solving and that they were concerned that [REDACTED]’s struggles would increase as academic demands increased grade-by-grade. P-6 at 2, 4.
  • • Dr. [REDACTED] administered the WISC-V to [REDACTED] P-6 at 3, 12. [REDACTED] attained the following composite scores: Full Scale – 99 (47th %ile); Verbal Comprehension – 98 (45th %ile); Visual Spatial – 119 (90th %ile); Fluid Reasoning – 97 (42 %ile); Working Memory - 91 (27th %ile); and Processing Speed – 86 (18th %ile). P-6 at 12.
  • • During testing, [REDACTED] demonstrated foundational math skills, but his reading skills were “more fragile” as he engaged in miscues when reading (including skipping words) and struggled with comprehension. P-6 at 3.
  • • [REDACTED] demonstrated deficits in the areas of reading (specifically in phonological processing and decoding) and spelling. Tr. 647-648; P-6 at 4-5. He also struggled with decoding and reading comprehension. P-6 at 5, 6-7. On the KTEA-3, [REDACTED] (as a student who was completing [REDACTED] grade) attained certain scores that were well below grade level: Phonological Processing – 1.9 grade equivalent (16th %ile); and Nonsense Word Decoding – 2.11 grade equivalent (21st %ile). On the GORT-5, [REDACTED] attained an Oral Reading Index score in the 7th percentile. P-6 at 13. On the WJ-IV, [REDACTED] scored in the 8th percentile, a 2.5 grade equivalent, on passage comprehension. P-6 at 13.
  • • Testing found no indication of cognitive impairment or social, emotional or behavioral concerns. Tr. 647; P-6 at 3, 6-7.
  • • In her Neuropsychological Evaluation Confidential Report, Dr. [REDACTED] concluded that [REDACTED] was a student within the average range of intelligence with “some variability and weaker scores in the area of processing speed.” Tr. 646; P-6 at 4. [REDACTED] also struggled with certain language tasks, such as retelling a story and recalling a list of words. P-6 at 4.
  • • Dr. [REDACTED] diagnosed [REDACTED] with a “Specific Learning Disorder, with Impairment in Reading, namely dyslexia.” P-6 at 7.
  • • Dr. [REDACTED] provided recommendations for [REDACTED]’s educational program, including placement in an educational environment in which [REDACTED] could receive “targeted instructional support” in reading. P-6 at 8; see also P-6 at 9-11.
  • • [REDACTED]’s father discussed the report with Dr. [REDACTED], and Dr. [REDACTED] revised the report with respect to an ICT class and a “structured literacy approach” and to include and a list of areas for which [REDACTED] should have IEP goals. Tr. 611-612, 617, 620-621, 624-625, 688; P-6 at 8.
  • • The CSE reconvened on August 9, 2021. Tr. 89, 314, 315. The CSE considered and discussed Dr. [REDACTED]’s evaluation. Tr. 93, 96, 315-316, 327, 546. The resulting District recommendations and IEP for [REDACTED] are irrelevant to these proceedings.
  • • [REDACTED]’s father paid Dr. [REDACTED] $4,800.00 to conduct the neuropsychological evaluation and prepare the report. Tr. 570-571.

Decision

The central purposes of the IDEA are to ensure: (1) that students with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living and (2) that the rights of students with disabilities and their parents are protected. 20 U.S.C. §1400(d)(1)(A); Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1, 137 S. Ct. 988, 994 (2017); Schaffer v. Weast, 546 U.S. 49, 51 (2005); Board of Education v. Rowley, 458 U.S. 176, 179-181 (1982). In order to effectuate the purposes of the IDEA, the statute places an affirmative obligation upon state and local educational agencies, such as school districts, to identify, locate and evaluate all children with disabilities residing in the state. 20 U.S.C § 1412(a)(3)(A); 34 C.F.R. § 300.111(a); 8 N.Y.C.R.R. § 200.2(a); Handberry v. Thompson, 219 F. Supp. 2d 525, 540 (S.D.N.Y. 2002), aff’d, 436 F.3d 52 (2d Cir. 2006). An appropriate educational program “begins with an IEP which accurately reflects the results of evaluations to identify the student’s needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services.” Application of a Child with a Disability, Appeal No. 07-010.

The New York State regulations carefully spell out the requirements for evaluations and reevaluations of students with disabilities. A CSE is required to “arrange for an appropriate reevaluation of a student... at least once every three years, except where the school district and the parent agree in writing that such reevaluation is unnecessary.” 8 N.Y.C.R.R. § 200.4(b)(4); see also 20 U.S.C. § 1414(a)(2). This reevaluation must “be conducted by a multidisciplinary team or group of persons, including at least one teacher or other specialist with knowledge in the area of the student’s disability.” 8 N.Y.C.R.R. § 200.4(b)(4). “The purpose of [a] triennial evaluation is to provide sufficient information to determine a child's individual needs and continuing eligibility for special education.” Application of a Child with a Handicapping Condition, Appeal No. 91-37.

The CSE must address the results of a reevaluation in a meeting to review the student’s IEP. Id. The goal of the entire evaluation process (whether an initial evaluation of a student or a subsequent reevaluation) is to enable the CSE to create an appropriate IEP for the student. See, e.g., D.S. v. Trumbull Bd. of Educ., 975 F. 3d 152, 157 (2d Cir. 2020) (“Trumbull”); L.O. v. New York City Dept. of Educ., 822 F.3d 95, 109-111 (2d Cir. 2016); A.R. v. Norwalk Board of Education, 183 F. Supp. 2d 534, 549 (D. Conn. 2002); Application of a Student with a Disability, Appeal No. 10-033 at pp. 30-32.

An evaluation includes “any procedures, tests or assessments used selectively with an individual student... as may be necessary to determine whether a student has a disability and the extent of his/her special education needs.” 8 N.Y.C.R.R. § 200.1(aa). The purpose of an individual evaluation is “to gather relevant functional, developmental and academic information about the student that may assist in determining... the content of the student’s [IEP], including information related to enabling the student to participate and progress in the general education curriculum.” 8 N.Y.C.R.R. § 200.4(b)(1). A reevaluation of a student with a disability must “be sufficient to determine the student’s individual needs, educational progress and achievement, the student’s ability to participate in instructional programs in regular education and the student’s continuing eligibility for special education.” 8 N.Y.C.R.R. § 200.4(b)(4) (emphasis added). A reevaluation must also include data to determine the student’s present levels of academic achievement and related developmental needs, whether the student continues to needs special education, and whether the student needs additions or modifications to special education services. 8 N.Y.C.R.R. § 200.4(b)(5)(ii)(a)-(d) (emphasis added). In other words, a school district’s triennial reevaluation of a student must be “comprehensive.” Trumbull, 975 F.3d at 157, 163; see also 20 U.S.C. § 1414(b) & (c).

Section 200.1(ww)(3)(i) of the Regulations further describes the four areas of individual needs into which the CSE must inquire:

(a) academic achievement, functional performance and learning characteristics which shall mean the levels of knowledge and development in subject and skill areas, including activities of daily living, level of intellectual functioning, adaptive behavior, expected rate of progress in acquiring skills and information, and learning style;

(b) social development which shall mean the degree and quality of the student's relationships with peers and adults, feelings about self, and social adjustment to school and community environments;

(c) physical development which shall mean the degree or quality of the student's motor and sensory development, health, vitality, and physical skills or limitations which pertain to the learning process; and

(d) management needs which shall mean the nature of and degree to which environmental modifications and human or material resources are required to enable the student to benefit from instruction....

8 N.Y.C.R.R. § 200.1(ww)(3)(iii) (emphasis added). School districts are required to “administer tests and other evaluation materials as may be needed to produce the data” described in 8 N.Y.C.R.R. § 200.4(b)(5)(ii) and § 200.1(ww)(3)(i). 8 N.Y.C.R.R. §200.4(b)(5)(iii).

All assessments and evaluations must be administered “in the form most likely to yield accurate information on what the student knows and can do academically, developmentally and functionally, unless it is clearly not feasible to so provide or administer.” 8 N.Y.C.R.R. § 200.4(b)(6)(i)(a) (emphasis added). In addition, “if an assessment is not conducted under standard conditions, a description of the extent to which it varied from standard conditions (e.g., the qualifications of the person administering the test, or the method of test administration) must be included in the evaluation report.” 8 N.Y.C.R.R. § 200.4(b)(6)(ii). And in particular, “assessments and other evaluation materials [must] include those tailored to assess specific areas of educational need and not merely those which are designed to provide a general intelligence quotient.” 8 N.Y.C.R.R. § 200.4(b)(6)(iii) (emphasis added). Students must be “assessed in all areas related to the suspected disability, including, where appropriate, health, vision, hearing, social and emotional status, general intelligence, academic performance, vocational skills, communicative status and motor abilities” and the evaluation must be “sufficiently comprehensive to identify all of the student's special education needs, whether or not commonly linked to the disability category in which the student has been identified.” 8 N.Y.C.R.R. § 200.4(b)(6)(vii) & (ix); see also Application of a Student with a Disability, Appeal No. 13-215 at pp. 16-17.

State regulations also state that: “[i]f the parent disagrees with an evaluation obtained by the school district, the parent has a right to obtain an independent educational evaluation at public expense.” 8 N.Y.C.R.R. § 200.5(g)(1); see also Application of the New York City Dept. of Educ., Appeal No. 20-117 at p.14. However, “a parent is entitled to only one independent educational evaluation at public expense each time the school district conducts an evaluation with which the parent disagrees.” Id. School district personnel may ask a parent why he or she disagrees with the district’s evaluation, but a parent is not required to provide such an explanation to the district. 8 N.Y.C.R.R. § 200.5(g)(1)(iii); see also 34 C.F.R. § 300.502(b)(4).

If a parent requests an independent educational evaluation at public expense, “the school district must, without unnecessary delay, either ensure that an independent education evaluation 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.” 8 N.Y.C.R.R. §200.5(g)(1)(iv); see also Trumbull, 975 F.3d at 158, 163; Application of a Student with a Disability, Appeal No. 13-215 at p. 16; Application of the Board of Education, Appeal No. 11-122 at pp. 16-17. If the hearing officer finds that a school district’s evaluation is appropriate or that the evaluation obtained by the parent did not meet school district criteria, a parent may not receive reimbursement for that evaluation. 8 N.Y.C.R.R. §200.5(g)(v).

In New York, the school district bears the burden of proof in an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement. N.Y. Educ. Law § 4404(1)(c); see R.E., 694 F.3d at 184-85. The District requested this impartial hearing to challenge [REDACTED]’s parents’ request for an independent evaluation at public expense, and the District has the burden of proof to demonstrate that its evaluation of [REDACTED] was appropriate. The District contends, in its hearing request, that its evaluations of [REDACTED] were appropriate and that no other evaluations were required or appropriate in order to recommend special education programs and services for [REDACTED] Complaint (P-5) at 16.

In this case, the analysis of the District’s challenge to [REDACTED]’s IEE request involves the following steps as outlined below.

1. Did [REDACTED]’s parents disagree with District evaluations?

A parent’s right to an IEE at public expense “is triggered” when a parent disagrees with a school district’s evaluation. Trumbull, 975 F.3d at 163. In their April 19, 2021 letter to the District (P-2), [REDACTED]’s parents clearly expressed their disagreement with the “scope” of the District’s evaluations of [REDACTED]—both the evaluations that the District had conducted in the past as well as the District’s evaluation being conducted in Spring 2021. See Trumbull, 975 F.3d at 165 (“Nothing in the statute or regulations suggests that a parent cannot challenge an evaluation on the ground that it was too limited. To the contrary, because the IDEA requires an evaluation to be comprehensive, one would expect that a parent is free to disagree with an evaluation based on its deficient scope.”). As a result, since [REDACTED]’s parents stated that they disagreed with the “scope” of the District’s evaluations, I conclude that [REDACTED]’s parents properly disagreed with the District’s evaluations of [REDACTED]

2. Which evaluation is relevant to this proceeding?

The question then arises: should this decision address both District evaluations—the 2017 initial evaluation and the 2020-2021 evaluations—or only one set of these evaluations.[7] I include in the 2020-2021 evaluations Ms. [REDACTED]’s physical therapy evaluation dated January 2020 (D-K), Dr. [REDACTED]’s Psychological Reevaluation (undated) and [REDACTED]’s father’s Social History Update dated January 2, 2020 (P-12). The District was required to conduct a timely triennial reevaluation of [REDACTED] in 2020. [8] Trumbull instructs that a school district’s initial evaluations and triennial reevaluations “trigger” a parent’s right to an IEE and that this right “ripens each time a new evaluation is conducted.” 975 F.3d at 169-170. Furthermore, under Trumbull, a “subsequent evaluation” appears to “render[] irrelevant” a parent’s disagreement with an earlier evaluation. Id. at 170. See also Application of a Student with a Disability, Appeal No. 21-120 at 17.

Since the District acknowledged that [REDACTED]’s triennial reevaluation was due in 2020, and since the District contended that Dr. [REDACTED]’s Psychological Reevaluation was delayed due to COVID, I conclude that the District evaluations conducted in 2020 and 2021 (Ms. [REDACTED]’s 2020 PT evaluation and Dr. [REDACTED]’s Psychological Reevaluation) with the Social History Update completed by [REDACTED]’s father in January 2020, should be considered a triennial evaluation properly subject to challenge under Trumbull. I therefore do not need to address further the District’s 2017 evaluations of [REDACTED], nor do I need to make further determinations with respect to the 2017 initial evaluation and shall focus on the District’s evaluations conducted in 2020 and 2021, to which I will refer as a triennial reevaluation.

3. Was the District’s evaluation of [REDACTED] appropriate?

As the [REDACTED] Circuit makes clear in Trumbull, a school district’s reevaluation of a student consists of the collection of assessments that should constitute a “comprehensive” evaluation of that student “that follows the mandatory procedures outlined in Section 1414 of the IDEA, including assessing the child in all areas of [the student’s] disability.” 975 F.3d at 163 (emphasis in [REDACTED]l). The District’s triennial evaluation of [REDACTED] was not “comprehensive” because it did include any assessments of [REDACTED]’s academic functioning. A review of the regulatory framework compels this conclusion.

The District’s testing and assessments did not produce “data to determine [[REDACTED]’s] present levels of academic achievement,” failed to determine [REDACTED]’s “educational progress and achievement,” failed to inquire into [REDACTED]’s “levels of knowledge and development in subject and skill areas,” and failed to obtain “accurate information on what [[REDACTED]] knows and can do academically.” See 8 N.Y.C.R.R. § 200.4(b)(4); 8 N.Y.C.R.R. § 200.4(b)(5)(ii)(a); 8 N.Y.C.R.R. § 200.1(ww)(3)(iii)(a); 8 N.Y.C.R.R. § 200.4(b)(5)(iii); 8 N.Y.C.R.R. § 200.4(b)(6)(i)(a). There was IQ testing, a classroom observation, some information about social-emotional functioning, PT clinical assessment material, and information from [REDACTED]’s father (in the Social History Update) about [REDACTED]’s medical diagnoses, gross motor activities, and positive attitude; yet there was no assessment of [REDACTED]’s present levels of academic performance See A.R., 183 F. Supp. 2d at 550 (school district’s evaluation of student determined inappropriate because it did not include an educational assessment); Brock v. New York City Dept. of Educ., 13 Civ. 8673, 2015 U.S. Dist. LEXIS 44254 (S.D.N.Y. March 31, 2015) (lack of educational testing in a student’s reevaluation resulted in a denial of FAPE); Application of a Student with a Disability, Appeal No. 13-215 at p. 16 (school district’s evaluation determined inappropriate because it did not include evaluation of student’s reading skills). Observations from a classroom teacher, such as that included in Dr. [REDACTED]’s Reevaluation, that [REDACTED] worked hard, performed on grade level and understood what he read is not sufficient.

Furthermore, an individual psychological evaluation is “a process by which a New York State-certified school psychologist or licensed psychologist uses, to the extent deemed necessary for purposes of educational planning, a variety of psychological and educational techniques and examinations... to study and describe a student's developmental, learning, behavioral and other personality characteristics.” 8 N.Y.C.R.R. § 200.1(bb). While Dr. [REDACTED]’s evaluation generally covered these areas, she did not conduct any testing or assessment of [REDACTED]’s academic functioning, nor did any other District personnel.[9] When the evaluative material produced in [REDACTED]’s triennial evaluation is combined and considered as a whole, there is a dearth of “academic information” about [REDACTED] to be used in developing an IEP for him. See 8 N.Y.C.R.R. § 200.4(b)(1). As a result, the Psychological Reevaluation and the PT evaluation, with the Social History, do not constitute a “comprehensive” evaluation under Trumbull and the relevant regulations.

As to the delay in [REDACTED]’s triennial reevaluation, Dr. [REDACTED] and other school personnel were working with children under the uniquely trying conditions of the COVID pandemic. Dr. [REDACTED], during her testimony, evinced genuine concern for students, including [REDACTED] It is understandable that, due to the COVID pandemic, triennial evaluations might be delayed. However, State guidance to school districts relating to school operations during the COVID pandemic instructs districts to continue to conduct evaluations and reevaluations of students with disabilities during school closures and when schools reopen.[10] Tr. 303-304.

4. Was the District excused from conducting educational/academic testing in the triennial reevaluation because it deemed [REDACTED] an “average” student who performed at or close to grade level?

The tenor of the testimony of the District witnesses conveys the position that [REDACTED] did not need academic testing as a component of his reevaluation because he was more or less an “average” student who was not demonstrating any academic difficulties in the classroom. The evidence that the District was able to adduce to attempt to demonstrate that educational testing of [REDACTED] was not a necessary component of the triennial reevaluation of [REDACTED] consisted of testimony from [REDACTED]’s classroom teachers that [REDACTED] was an “average” student who seemed to be performing on grade level. Although [REDACTED]’s teachers testified that they conducted reading assessments in the classroom, the District did not introduce the results of or data from such testing. The report cards that were offered and admitted in evidence contain general information that does not serve as evaluative “data” or “assessments.” Even if [REDACTED]’s teachers had no concerns about [REDACTED]’s academic performance, testing or assessment of a student’s academic functioning must be a component of a “comprehensive” triennial evaluation. See Trumbull, 975 F.3d at 155, 163; 20 U.S.C. § 1414(b) & (c).

Furthermore, [REDACTED]’s father discussed his concerns about [REDACTED]’s reading, writing and math functioning with Ms. [REDACTED], [REDACTED]’s [REDACTED] grade teacher. In addition, [REDACTED]’s father raised, at least during the May 2020 and June 2021 review meetings, concerns about the family’s history of dyslexia and the possibility of [REDACTED] experiencing learning disabilities. I do credit the testimony of the District’s witnesses that [REDACTED] was a hard-working student who participated in learning in the classroom and manifested positive behaviors. I also credit the testimony of [REDACTED]’s father that, by [REDACTED] grade, [REDACTED] was demonstrating difficulties in reading, writing and math. While a school district is not required to test for a specific diagnosis (such as dyslexia), a school district is required to conduct a “comprehensive” triennial reevaluation of a student. In addition, District personnel should have listened to [REDACTED]’s father’s concerns that [REDACTED] might experience learning disabilities and administered testing or assessments to [REDACTED] to examine his academic functioning. The District’s description of [REDACTED] as “average” and “on grade level” does not excuse it from conducting a “comprehensive” triennial reevaluation, one that includes assessment of academic functioning.

5. Did the IEE meet District “criteria”?

A school district may set criteria for independent educational evaluations. These criteria, “including the location of the evaluation and the qualifications of the examiner, shall be the same as the criteria which the school district uses when it initiates an evaluation, to the extent that those criteria are consistent with the parent’s right to an independent educational evaluation.” 8 N.Y.C.R.R. § 200.5(g)(1)(ii); see also 8 N.Y.C.R.R. §200.1(z) (definition of independent educational evaluation). The District offered no evidence of its criteria for independent evaluations.

I do note that District counsel argued diligently that Dr. [REDACTED]’s report was irrelevant to these proceedings, and should be inadmissible, and if admitted, then disregarded; Parent’s counsel argued diligently that Dr. [REDACTED]’s report was relevant to this proceeding and, because the District made changes to a subsequent IEP for [REDACTED], this demonstrates that [REDACTED]’s parents should be reimbursed for the costs of Dr. [REDACTED]’s evaluation. As rulings made throughout the proceedings indicated, both sets of arguments are wrong. The report was admissible for the reasons set forth in the Decision and Order on School District’s Evidentiary Motions and Parents’ Objections to School District’s Subpoenas (IHO XVIII). Whether or not the District made changes to a subsequent IEP is irrelevant to these proceedings because the core issue in this proceeding is the appropriateness of the District’s triennial reevaluation of [REDACTED] at the time that it was conducted.

In any event, Dr. [REDACTED] is properly licensed to perform the evaluation of [REDACTED], and her evaluation report is thorough and contains detailed information about [REDACTED] and “what [he] knows and can do academically, developmentally and functionally.” See 8 N.Y.C.R.R. § 200.4(b)(6)(i)(a); see also 8 N.Y.C.R.R. §200.1(bb). (definition of psychological evaluation). [REDACTED]’s father testified that Dr. [REDACTED]’s charged $4,800.00 for her evaluation. The District did not present any evidence to challenge this charge.

6. Are there any equitable factors that might impact an award of an IEE at public expense?

There are no equitable factors that would impact reimbursement to [REDACTED]’s parents for Dr. [REDACTED]’s evaluation of [REDACTED] [REDACTED]’s parents were open with District about [REDACTED]’s diagnoses and educational needs, consented to evaluations, asked Dr. [REDACTED] if [REDACTED]’s triennial evaluation could be conducted remotely, attended CSE meetings and completed the Social History.

The District sought to challenge Dr. [REDACTED]’s report on the basis that she made “revisions” to her report. I find Dr. [REDACTED]’s revision to be more explanatory of a portion of her recommendations and certainly did not impact the testing she conducted, or the test results that [REDACTED] attained. Therefore, I find no grounds to deny or diminish reimbursement because Dr. [REDACTED] revised a portion of her recommendations for [REDACTED] In conclusion, the parental right to an IEE is a component of the IDEA’s carefully crafted procedural framework and “attempts to level the playing field” for parents permitting them to obtain an independent expert opinion about their child’s disability and educational needs. Trumbull, 975 F.3d at 158; see also Schaffer, 546 U.S. at 60-61; T.P. v. Bryan Cnty. Sch. Dist., 792 F.3d 1284, 1293 (11th Cir. 2015) (“The parental right to an IEE is not an end in itself; rather, it services the purpose of furnishing parents with the independent expertise and information they need to confirm or disagree with an extant, school-district-conducted evaluation.”), cited in Trumbull, 975 F. 3d at 168.

Therefore, for all the above reasons, it is hereby ORDERED that:

The District shall reimburse [REDACTED]’s Parents in an amount not to exceed $4,800.00 for the Neuropsychological Evaluation of [REDACTED] conducted by Dr. [REDACTED]. Reimbursement shall be made to [REDACTED]’s Parents within fifteen business days of the [REDACTED]’s Parents providing the District with proof payment for the Neuropsychological Evaluation.

Dated: March 14, 2022

_________________________________ IHO Jean Marie Brescia, Esq.

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the New York City District of Education has a right to appeal the decision to the State Review Officer (SRO) of the New York State Education District 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 District 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.

DOCUMENTATION ENTERED INTO THE RECORD

School District Exhibits

Document No. Date Description

EXHIBIT IEPs

A 4/10/2019 IEP 2019-2020 (9 pgs.)

B 5/21/2020 IEP 2020-2021 (9 pgs.)

C 6/09/2021 IEP 2021-2022 (9 pgs.)

NOTICES

D 7/10/2019 Prior Written Notice (2 pgs.)

E 7/13/2020 Prior Written Notice (2 pgs.)

F 7/13/2021 Prior Written Notice (2 pgs.)

G 3/05/2019 Meeting Notice (2 pgs.)

H 5/04/2020 Meeting Notice (2 pgs.)

I 5/19/2021 Meeting Notice (2 pgs.)

EVALUATIONS

J 2/04/2019 Metro Therapy Physical Therapy Re-Evaluation by [REDACTED] [REDACTED] (2 pgs.)

K 1/14/2020 Metro Therapy Physical Therapy Re-Evaluation by [REDACTED] [REDACTED] (2 pgs.)

L Undated Psychological Re-Evaluation by [REDACTED] [REDACTED], Psy.D. (5 pgs.)

REPORT CARDS

M Grade 3 Report Card – Mrs. [REDACTED] (2 pgs.)

N Grade 4 Report Card – Ms. [REDACTED] (2 pgs.)

P 8/29/2019 Prior Written Notice with Consent Form (3 pgs.)

Parents’ Exhibits

Document Description

Pages

Date

  • • P-1

[REDACTED] to-from [REDACTED]

2

7-13-21

  • • P-2

[REDACTED] [REDACTED] IEE Request

1

4-19-21

  • • P-4

FW_ [REDACTED] [REDACTED] Transmittal Email re IEE Request

2

4-19-21

  • • P-5

[REDACTED] DW Due Process Complaint 5-27-21

17

5-27-21

  • • P-6

[REDACTED] Report

60

June 2021

  • • P-8

NYU to Whom It May Concern ltr ([REDACTED])

2

No Date

  • • P-12

Social History Update

4

1-2-20

  • • P-13

CV – Dr. [REDACTED]

5 undated

IHO Exhibits

Notice of Motion to Preclude the Introduction of the Neuropsychological Evaluation Obtained by the Parent (IHO Ex. I) – 1 page

Memorandum of Law in Support of Motion to Preclude the Introduction of the Neuropsychological Evaluation Obtained by the Parent (with annexed Exhibits A [Complaint] and B [Proposed Resolution]) (IHO Ex. II) – 27 pages

Notice of Motion to Limit the Scope of this Hearing (IHO Ex. III) – 2 pages

Memorandum of Law in Support of Motion to Limit the Scope of this Hearing (IHO Ex. IV)

Proposed Subpoenas Duces Tecum dated July 15, 2021 (IHO Ex. V) – 9 pages

Memorandum of Law in Opposition to the Preclusion Motion (IHO Ex. VI) – 16 pages

Memorandum of Law in Opposition to the Motion to Narrow the Scope of the Hearing (IHO Ex. VII) – 11 pages

Affidavit of [REDACTED] dated August 9, 2021 (IHO Ex. VIII) – 6 pages

Letter dated August 9, 2021 opposing the subpoenas sought by the District (IHO Ex. IX) – 3 pages

Letter reply brief from the District dated August 16, 2021 with annexed revised proposed subpoenas (IHO Ex. X) – 6 pages

Sur-reply letter on behalf of [REDACTED]’s parents dated August 17, 2021 (IHO Ex. XI) – 2 pages

Signed Subpoenas dated August 31 and September 3, 2020 (IHO Ex. XII) – 6 pages

Appointment Letter dated June 7, 2021 (IHO Ex. XIII) – 1 page

Scheduling Order and Order Granting Joint Application for an Extension of the Compliance Date dated June 28, 2021 (IHO Ex. XIV) – 2 pages

Scheduling Order dated July 22, 2021 (IHO Ex. XV) – 2 pages

[REDACTED] Scheduling Order dated August 2, 2021 (IHO Ex. XVI) – 2 pages

[REDACTED] Scheduling Order dated August 11, 20021 with annexed email from counsel (IHO Ex. XVII) – 5 pages

Decision and Order on School District’s Evidentiary Motions and Parents’ Objections to School District’s Subpoenas dated August 31, 2021 (IHO Ex. XVIII) – 8 pages

Summary of Prehearing Conference dated September 15, 2021 (IHO Ex. XIX) – 2 pages

Extension Order dated September 25, 2021 (IHO Ex. XX) – 2 pages

Scheduling Order dated October 13, 2021 (IHO Ex. XXI) – 1 page

Scheduling and Extension Order dated November 11, 2021 (IHO Ex. XXII) – 2 pages

Scheduling Order dated December 21, 2021 (IHO Ex. XXIII) – 1 page

Extension Order dated February 1, 2022 (IHO Ex. XXIV) – 2 pages

Order Denying Extension Request dated March 4, 2022 (IHO Ex. XXV) – 4 pages

Footnotes

[1] IHO Exhibits are designated as “IHO” followed a Roman numeral; Parent’s Exhibits are designated as “P” followed by a number; and District Exhibits are designated as “D” followed by a letter. Since the hearing was conducted remotely, the exhibits were not marked by the court reporter, but rather by the hearing officer.

[2] Both the 2019 and 2020 IEPs refer to IEP Progress Reports. D-A at 2; D-B at 2. These Reports were not offered in evidence.

[3] [REDACTED]’s [REDACTED] and [REDACTED] grade report cards were offered and admitted in evidence. D-M, D-N. The report cards indicated that [REDACTED] was a student who was generally meeting standards across academic areas. While the classroom teachers acknowledged some irregularities in the formatting and symbol “keys” in the report cards (see, e.g., Tr. 177-178, 181-182), these irregularities do not impact the foregoing observation that the report cards stated that [REDACTED] was generally meeting standards.

[4] The consent form signed by [REDACTED]’s parents was dated January 2, 2020. D-P at 3. The consent form was annexed to a document labelled “Prior Written Notice Proposed Reevaluation and Request for Consent” dated August 29, 2019. D-P at 1-2. At the hearing, there was no testimony (or other evidence) of when the District sent, or [REDACTED]’s parents received, this Prior Written Notice form or the consent form. There was no testimony (or other evidence) that [REDACTED]’s parents’ consent was untimely or that the District was prejudiced by the submission of the consent in January 2020. Furthermore, neither in its Due Process Complaint (P-5) nor at the hearing, did the District assert that [REDACTED]’s parents failed to timely consent to any evaluations. In any event, the District was due to conduct its reevaluation of [REDACTED] in 2020, and [REDACTED]’s parents signed and forwarded the consent form to the District in the [REDACTED] week of January 2020. D-P at 3.

[5] The May 7, 2021 classroom observation is incorporated in Dr. [REDACTED]’s Psychological Reevaluation. D-L at 2.

[6] In conducting her PT reevaluations of [REDACTED], Ms. [REDACTED] did not observe him falling out of his chair. Tr. 451.

[7] The [REDACTED] Circuit has determined that the IDEA’s two-year statute of limitations does not apply to parental requests for IEEs at public expense. Trumbull, 975 F.3d at 168-170). The above analysis does not rest upon the statute of limitations. .

[8] [REDACTED]’s parents did not agree to waive [REDACTED]’s triennial reevaluation; when Dr. [REDACTED] proposed that they waive the reevaluation, they declined, as was their right. See 8 N.Y.C.R.R. § 200.4(b)(4).

[9] Section 200.4(j) of the Commissioner’s Regulations sets for procedures for identifying and evaluating students suspected of having learning disabilities. Given the findings in this decision, I need not make any findings with respect to this section.

[10] See, e.g., New York State Education Department, Supplement #3 -Provision of Services to Students with Disabilities During Statewide School Closures Due to Novel Coronavirus (COVID-19) Outbreak in New York State, June 20, 2020; New York State Education Department, Provision of Services to Students with Disabilities During Statewide School Closures Due to Novel Coronavirus (COVID-19) Outbreak in New York State, March 27, 2020.