New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 556673 - NYC: 212688

FINDINGS OF FACT AND DECISION

Student’s Name: REDACTED

Date of Birth: REDACTED

District: REDACTED

Hearing Requested by: REDACTED

Record Close Date: December 17, 2021

Hearing Officer: Alena Weiserbs, Esq.

On September 1, 2021, Redacted (the “Parent”) of Redacted (the “Student”) filed a due process complaint (the “DPC”) under the Individuals with Disabilities Education Act (the “IDEA”) [20 U.S.C. section 1415(f)] and Section 4404(1) of the New York State Education Law against the Redacted (the “DOE”) (P- Ex. A). I was appointed as impartial hearing officer (“IHO”) on October 8, 2021. The Parent was represented by Redacted, Esq. of Redacted (“Parent’s Attorney”). The School District was represented by Redacted (“DOE”).

A Pendency Hearing was held on October 19, 2021. The Pendency Order was issued on October 25, 2021, which found the June 18, 2020 IEP to be the last agreed upon placement, because to remove the Student from her current educational placement in the ICT class would be disruptive for the Student, defeating the purposes of the pendency provisions, which are to maintain a consistent and stable environment for the Student during administrative or judicial proceedings despite the fact that the said IEP offered a placement in a general education class. The remaining hearings went forward on November 18, 2021 and on December 10, 2021.

The DOE did not present any testimony or submit any documentary evidence. Nor did it present during the November 18, 2021 or December 10, 2021 hearings.

Lists of documentary evidence in this proceeding are appended to this Order. Although only portions of the evidence are referenced herein, the testimony and documents were reviewed in full.

BACKGROUND AND POSITIONS OF THE PARTIES

The Student is a REDACTED year old female student in kindergarten who is classified as a student with autism spectrum disorder (P- Ex. A, B, C, E & F). She attends Redacted (“Public Charter School”) in an integrated co-teaching class (“ICT”) (P-Ex. A). The within proceeding pertains to the Parent’s disagreement over the last IEP dated April 21, 2021, which discontinued the Student’s ten periods per week of individual SEIT services (P -Ex. B & C). The Parent asserts that an ICT setting alone does not offer sufficient support services, and is not an appropriate setting at the Public Charter School given her autism diagnosis and the depths of her significant delays (P- Ex. A, D, E, & F; Tr. 25). The Parent alleges that IEP dated April 7, 2021 was substantively deficient and denied her daughter and free appropriate public education (“FAPE”). She claims that the April 7, 2021 IEP was substantively deficient because the IEP’s at its present levels of performance failed to meaningfully describe her daughter’s needs, academic deficits or abilities and that its goals were vague and not designed to meet her needs (P-Ex. A-4). The Parent claims that the IEP was also procedurally deficient since the CSE failed to provide written notice, did not provide a basis for its determinations, or evaluate the Student prior to the meeting. The Parent further claims that this further compromised her ability to meaningfully participate in the IEP. In fact, Parent asserts that the Student required more support services than were offered even in the June 18, 2020 IEP, making the reduced services provided in the April 7, 2021 particularly problematic given the Student’s academic and social support needs (P Ex. E-4). The Parent further seeks an independent neuropsychological evaluation of the Student to help determine what educational supports are needed for the CSE to develop an appropriate IEP (P-Ex. A; Tr. 26-27).

FINDINGS OF FACT AND DECISION

The IDEA provides that children with disabilities are entitled to a Free Appropriate Public Education ("FAPE") (20 U.S.C. § 1400 [d][1][A]. A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written Individualized Education Program (“IEP”) (34 C.F.R. § 300.13). A school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through the IDEA's procedures and is reasonably calculated to enable the student to receive educational benefits Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). In order to meet its substantive FAPE obligations, a district must offer a student an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances” Endrew F. v. Douglas County Sch. Dist. RE-1, No 15-827, 2017 WL 1066206, 137 S.Ct. 988, 69 IDELR 174 (U.S. Mar 22, 2017). School districts are required to provide the services set forth in a student’s IEP.

The DOE bears the burden of proof on all matters at this hearing. N.Y. Education Law §4404(1)(c); M.H. v. N.Y.C. Dep’t of Educ., 685 F.3d 217, 224-25 (2d Cir. 2012). It has both the burden of production and the burden of persuasion on each of the claims put forth by the Parent. See, Schaffer v. Weast, 546 U.S. 49 (2005); M.P.G. v. N.Y.C. Dep’t of Educ., 2010 WL 3398256, at *7 (S.D.N.Y. Aug. 27, 2010). Specifically, the DOE bears “the burden of demonstrating the appropriateness of its proposed IEP.” Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 379 (2d Cir. 2003). Further, a SRO has found that allegations that are left unchallenged are deemed as true “unless found to be inconsistent with the evidence in the record.” Appeal No., 01-044 (SRO March 27, 2002); see also SRO Appeal No. 12-006 at 8. The DOE’s silence at a hearing has the effect of conceding every point alleged by the Parent against the DOE unless it is inconsistent with the hearing record. Id.; and see SRO Appeal No. 19-038 at 28 (a district’s default deems all violations alleged in a due process complaint notice to be deemed true). Further,

[U]nder State law as set forth above, the burden of proof has been placed on the school district during 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 (Educ. Law § 4404[1][c]). In the instant case, there was no unilateral placement by the parent or request for tuition reimbursement.

Appeal No. 17-105 at 8-9 (SRO January 22, 2018) (emphasis added). Since this case does not involve a unilateral placement/tuition reimbursement claim, the DOE has the burden of proof on all FAPE issues.

In light of the DOE’s failure to present a case, there is no dispute as to the Student’s entitlement to the requested ten periods of individual services of a duly licensed special education teacher. The DOE failed to provide a FAPE for the Student for the 2021 to 2022 school year. The testimony and evidence demonstrate that an ICT class without individual special education teacher support services is not sufficient for the Student to make appropriate progress because she is struggling academically and socially without a SEIT (P- Ex. D, E& F). In fact, the Parent believes that her daughter’s support services need to be increased beyond the supports provided in the June 18, 2020 IEP to allow her to make appropriate academic and social progress (P- Ex. F). She requests that her daughter be evaluated for an independent neuropsychologist to determine an appropriate placement for her (Id.). Therefore, I find through the credible evidence and testimony submitted by the Parent, that the DOE denied the Student a FAPE for the 2020 to 2021 school year and that the Student is entitled to receive ten hours of individual services of a duly licensed special education teacher as well as the other support services provided in the June 18, 2020 IEP.

Independent Educational Evaluation

An independent educational evaluation (an “IEE”) is “an individual evaluation of a student with a disability or a student thought to have a disability, conducted by a qualified examiner who is not employed by the public agency responsible for the education of the student. 8 NYCRR § 200.1(z). “If 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 NYCRR § 200.5(g)(1). An IEE may be requested by parents, 8 NYCRR § 200.5(g)(1), or by an impartial hearing officer, 8 NYCRR § 200.5(g)(2). If an IEE at public expense is requested by parents, “the school district must, without unnecessary delay, either ensure an independent educational evaluation is provided at public expense or file a due process complaint notice to request a hearing to show that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria” 8 NYCRR § 200.5(g)(1)(iv). This is because evaluations identify the student's needs, establishes annual goals related to those needs, and provide for the use of special education services to formulate an appropriate educational program synthesized in an IEP. See, SRO 08-052; SRO 08-060. Re-evaluations must be conducted at least every three years unless both the parents and the district agree that a re-evaluation is unnecessary. 34 CFR §300.303(b)(2). As the SRO has made clear, a parent may express their disagreement with a district’s evaluations via a due process complaint, and need not even specify specific reasons for such disagreement, in order to trigger the entitlement to an IEE. (SRO 19-094 at pp. 6-7). Moreover, it is fundamental that the CSE’s placement recommendation be based upon the IEP (34 CFR §300.116[b][2]) and that the IEP be based upon current evaluations (34 CFR §300.303[b][2]); see also, SRO 11-126 at 20. The Regulations do not provide limitations or guidance about hearing officer requests or directives for IEEs.

Here, the DOE has neither provided the independent evaluation, nor initiated a hearing against the Parent to demonstrate the appropriateness of its actions, including its decision not to conduct evaluations. Thus, the DOE has not refuted the Parent’s entitlement to an evaluation, but, rather, has confirmed it (see, e.g., S.R.O. 20-490: “A prominent feature of this case is that the district did not attempt to defend itself at the impartial hearing against the parent's claim that a reevaluation of the student was needed and that the district failed to conduct one”). Accordingly, the Parent is entitled to the independent evaluation sought through her request made in her DPC. The Student requires a comprehensive independent neuropsychological evaluation so that her needs can be fully understood and appropriately addressed, and so that an appropriate educational program can be developed. Therefore, this IHO finds that the Student is entitled to an independent neuropsychological evaluation paid for at the public expense.

ORDER

NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT,

IT IS HEREBY ORDERED THAT:

• • (1) that the DOE shall fund the services of a duly-licensed special education teacher for the 2021-2022 school year at market rate for ten (10) periods of individual per week for the Student along with other related services provided in the June18, 2020 IEP;
• • (2) that DOE shall pay all invoices submitted by the Provider within thirty (30) days for services rendered;
• • (3) that the DOE is directed to fund an independent neuropsychological at the Parent’s choosing for the Student, which is to be conducted by a New York State licensed professional at market rate;
• • (4) that the DOE shall pay the neuropsychologist within thirty days of his or her submission of an invoice to the DOE; and
• • (5) that it is further ordered that the CSE is directed to convene within 15 days of a Parental request for an IEP meeting to develop a placement with meaningful and measurable goals to address the Student’s individual academic, behavioral, social and emotional deficits and that the CSE must rely on the recommendation of the Student’s independent evaluator when developing the new IEP.

Dated: January 2, 2022

Alena Weiserbs

Impartial Hearing Officer

DOCUMENTS ENTERED INTO THE RECORD

Parent’s Disclosure: Redacted (Case # Redacted)

Parent I.D.

Title

Date

Pages

Date Admitted

A Impartial Hearing Request 9/1/21 6pp. 10/19/2021

B Individualized Education Program 6/18/2o 15pp. 10/19/2021

C Individualized Education Program 4/7/21 15pp. 12/10/2021

D Redacted Progress Report 1/7/21 3pp. 12/10/2021

E Affidavit: Redacted (Parent) 11/12/21 5pp. 12/10/2021

F Affidavit: Redacted 12/2/21 7pp. 12/10/2021

• • 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.