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FINDINGS OF FACT AND DECISION
Case Number: 220344
Student’s Name: [REDACTED]
Date of Birth: [REDACTED]
District: [REDACTED]
Hearing Requested By: Parent
Date of Hearing: January 7, 2022
March 22, 2022
Actual Record Closed Date: April 8, 2022
Hearing Officer: Judith Schneider, Esq.
On January 7, 2022 and March 22, 2022, I conducted an Impartial Hearing (remotely via video conference) for the New York City Department of Education (“DOE” or “the district”) Impartial Hearing Office, 131 Livingston Street, Brooklyn, New York, pursuant to the Individuals with Disabilities Education Improvement Act (“IDEIA”), 20 U.S.C. §1415, and Article 89 of the Education Law of the State of New York, regarding the special education program of [REDACTED] (“the student”).
Procedural History
The proceeding was initiated at the request of the parent by correspondence dated October 26, 2022. (Ex. A) I was appointed as Impartial Hearing Officer on October 27, 2021. A prehearing conference was conducted on December 8, 2021 and a hearing scheduled for January 7, 20922. That hearing commenced but could not be continued due to technical difficulties which made it impossible to conclude. A hearing was scheduled for January 25, 2022 but was incorrectly processed, was not on the calendar of the parties and could not be conducted. A hearing scheduled for March 2, 2022 was adjourned at the parent’s request. (T55) A hearing was conducted and completed on March 22, 2022.
The parties moved to extend the compliance date on various occasions to enable the hearing. In considering the requests I weighed the cumulative impact of the relevant factors and found that the need of the parties for additional time to prepare and present their positions in accordance with the requirements of due process was greater than any delay in the resolution of this matter. Accordingly, the joint requests for extensions of the compliance dates were granted.
The current compliance date is May 4, 2022. The record closed on April 8, 2022, upon my receipt of all transcripts (hard copies).
Positions of the Parties
The parent requests an Independent Educational Evaluation (IEE) (Neuropsychological by a provider of the parent’s choice at market rate. The district asserts that the parent did not indicate dissatisfaction with evaluations conducted or request an evaluation prior to the filing of the IEE and asserts willingness to conduct certain evaluations.
Findings and Conclusion
The parent concedes that no request was made until the October 26, 2021 due process complaint. (T61)
The parent asserts and the district does not contest that the district did not agree to provide the IEE and did not file an impartial hearing request. (T64)
The district asserted that it was willing to conduct certain evaluations and did not contest the parent’s claim that the most recent DOE evaluation was in 2015. (T61)
The district ‘s willingness to conduct some evaluation, however, is not a basis for denying the parent’s request for an IEE pursuant to 8 NYCRR 200.5(g) Further, I note that the parent advocate’s claim that she was not informed of any efforts to conduct evaluations was not contested by the DOE.
With regard to the district’s objection based upon the fact that the initial notice of parent dissatisfaction was provided by the instant due proves complaint, I note that “…there is no reason why a due process complaint notice may not serve the function of expressing parent’s disagreement to the district.“ Appeal No. 19-094. The district had ample time in the 30 day resolution period and thereafter to have agreed to the parent’s request or proceed in the manner provided by 8 NYCRR 200.5(g). Appeal No. 19-094 It did neither. I conclude the parent is entitled to the IEE requested.
ORDER
The student is entitled to and the district shall fund a Neuropsychological Evaluation to be conducted by an appropriately qualified provider of the parent’s choice at market rate. The district may require evidence of the provider’s qualifications and as to the applicable market rate.
Dated: April 20, 2022
_________/s/_____________
JUDITH SCHNEIDER, 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 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.
EXHIBITS
District
None
Parent
| A | Impartial Hearing Request, 10/26/2021, 4 pgs. |
| B | Special Education Progress Report, 6/14/2021, 5 pgs. |
| C | CSE IESP, 6/29/2021, 16 pgs. |
Impartial Hearing Officer
None