New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 566540 - NYC: 221845

FINDINGS OF FACT AND DECISION

Case Number: 221845

Student’s Name: REDACTED

Hearing Requested By: Parent

Dates of Hearing: August 10, 2022

August 17, 2022

Actual Record Close Date: August 24, 2022

Hearing Officer: Jean Marie Brescia, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

August 10, 2022 For the Parent:

REDACTED, Esq.

For the Department:

REDACTED, District Representative

August 17, 2022 For the Parent:

REDACTED, Esq.

REDACTED, Parent

REDACTED, Neuropsychologist

REDACTED, Speech Pathologist

REDACTED, BCBA

For the Department:

REDACTED, District Representative

REDACTED, Esq.

On August 5, 2022, I was designated as impartial hearing officer, pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §1415(f), in the matter of REDACTED, after the appointment of another hearing officer was rescinded. REDACTED’s parents requested the hearing on November 19, 2021: (1) alleging that the Department failed to timely conduct an evaluation of REDACTED within 60 days of REDACTED’s parent’s request for an evaluation; (2) seeking independent evaluations of REDACTED, including a neuropsychological evaluation, an OT evaluation, a speech-language evaluation and a vocational assessment at public expense (an “IEE”); (3) seeking payment for reasonable transportation to and from the evaluation appointments; and (4) requesting that the Department convene an IEP meeting upon receipt of the IEE. Ex. F at 2-3.

On June 13, 2022, prior to my appointment as impartial hearing officer, Parent’s counsel filed a Motion for Summary Judgment. IHO Ex. I. The prior hearing officer did not rule on this motion. The rulings on the substantive issues set forth in Parent’s Motion are incorporated in this Findings of Fact and Decision.

A pre-hearing conference was conducted on August 10, 2022. The hearing on the merits was conducted and concluded on August 17, 2022. The Department did not present testimony or documentary evidence. Tr. 25.

On August 10, 2022, the parties made joint applications on the record for extensions of the compliance date. Because the case was out of compliance due to inaction prior to my appointment as hearing officer, the applications were granted by two separate written Orders of Extension dated August 10, 2022. On August 17, 2022, the parties made another joint application on the record for an extension of the compliance date. The application was granted by a written Order of Extension dated August 17, 2022. The record closed on August 24, 2022, upon the hearing officer’s receipt of the transcript of the hearing, and the Actual Record Close Date is August 24, 2022.

Appended to the record are the names of the persons who appeared at the hearing and a list of the documents entered into evidence.

Findings of Fact

• • REDACTED is REDACTED year-old girl who is eligible to receive special education and services. Ex. B. She attends the REDACTED School, a New York State-approved nonpublic special education school. Exs. A at 2, D at 2.
• • On October 30, 2020, REDACTED’s mother, through counsel, requested that the Department conduct certain evaluations of REDACTED: a neuropsychological evaluation, an occupational therapy evaluation, a speech-language evaluation, an assistive technology evaluation, and a vocational assessment. Ex. A.
• • On December 8, 2020, the Department issued a document labelled as a Prior Written Notice notifying REDACTED’s mother that, upon receipt of a consent from REDACTED’s mother, it would conduct a reevaluation of REDACTED consisting of a psychoeducational evaluation, an occupational therapy evaluation, a speech-language evaluation, an assistive technology evaluation, and a vocational assessment. Ex. B at 1, 3.
• • REDACTED’s mother consented to the evaluations. Ex. B at 4.
• • In March 2021, the Department conducted the evaluations (a neuropsychological, occupational therapy, speech-language evaluation, and assistive technology evaluations) and forwarded them to REDACTED’s mother. Exs. C, D at 2-3.
• • By letter dated April 23, 2021, REDACTED’s mother informed the Department that she disagreed with the evaluations conducted by the Department, specifically the neuropsychological, occupational therapy, and speech-language evaluations, and to the Department’s failure to conduct a vocational assessment. Ex. D at 2. She explained her disagreements with each evaluation in detail. Ex. D at 2-3.
• • REDACTED’s mother did not disagree with the Department’s assistive technology evaluation. Ex. D at 3.
• • In the April 23 letter, REDACTED’s mother requested an IEE at public expense, specifically a neuropsychological evaluation, an occupational therapy evaluation, a speech-language evaluation, and a vocational assessment. Ex. D at 3. She listed proposed providers and proposed costs of these evaluations. Ex. D at 3.
• • REDACTED’s mother, through counsel, requested this impartial hearing by Demand for Due Process, on November 19, 2021. Ex. F.^[1]
• • REDACTED is a New York State-licensed psychologist who has conducted thousands of neuropsychological evaluations of school-aged children. She conducts these evaluations at her office in REDACTED, New York. Ex. G at ⁋⁋ 1-6.
• • REDACTED is available to conduct a neuropsychological evaluation of REDACTED. Ex. G at ⁋ 11.
• • REDACTED would charge $5,000.00 for the above evaluation. This sum is less than her current rate of $5,500.00. REDACTED’s rates are within the “industry norm” in the New York City area, particularly for evaluations of the scope and complexity of REDACTED’s evaluations. Tr. 41-44; Ex. G at ⁋⁋ 9-10.
• • REDACTED pays for transportation via car service, out of her fee, for students and their parents to travel to her office in REDACTED for evaluations. Tr. 40.
• • REDACTED is a New York State-certified speech-language pathologist who has conducted speech-language evaluations for more than twelve years; she is the director of an agency, the REDACTED of New York. Ex. H at ⁋⁋ 1-7.
• • The REDACTED is available to conduct a speech-language evaluation and an occupational therapy evaluation of REDACTED. Ex. H at ⁋ 13.
• • The REDACTED would charge $2,500.00 each for the above evaluations. These rates are within the “regular and customary rates” in the New York City area. Ex. H at ⁋⁋ 10-12.
• • REDACTED is a New York State-licensed Behavior Analyst and the director of REDACTED, an agency that provides academic remediation and Applied Behavior Analysis and conducts evaluations, including vocational assessments. Ex. I at ⁋⁋ 1-3.
• • Ms. REDACTED is available to conduct a vocational assessment of REDACTED. Ex. I at ⁋ 5.
• • Ms. REDACTED would charge $1,200.00 for the above evaluation. This rate is the “customary rate” in the New York City area for such an evaluation, and particularly for an assessment of the scope and detail of Ms. REDACTED’s assessment. Tr. 55-56; Ex. I at ⁋ 5.
• • Parent sought provision of, or reimbursement for, MetroCards to travel to and from the offices of the evaluators for the evaluations to be conducted. Tr. 33-34.

Decision

The IDEA requires school districts to evaluate and reevaluate a student using “a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information, including information provided by the parent, that may assist in” formulating an IEP for the student. 20 U.S.C. § 1414(b)(2)(A). The IDEA requires that an evaluation of a student “be comprehensive.” D.S. v. Trumbull Board of Education, 975 F.3d 152, 162-163 (2d Cir. 2020) (“Trumbull”). A district must, among many other requirements, ensure that a student “is assessed in all areas of suspected disability,” that “assessment tools and strategies [are employed] that provide relevant information that directly assists persons in determining the educational needs” of the student (20 U.S.C. §§ 1414(b)(3)(B) & (C); 8 N.Y.C.R.R. §§ 200.4(b)(1), 200.4(b)(3), 200.4(b)(6)(vii)), and that “the evaluation is 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)(ix).

The New York State regulations carefully spell out the requirements for evaluations of students with disabilities. 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). 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). In other words, as stated above, a school district’s evaluation of a student must be “comprehensive.” Trumbull, 975 F.3d at 157, 163; see also 20 U.S.C. § 1414(b) & (c).

The regulations relevant to the IEE request in this proceeding state that: “[i]f the parent disagrees with an evaluation obtained 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). 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. 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) (emphasis added); see also Application of a Student with a Disability, Appeal No. 21-091 at p. 52; Application of the New York City Department of Education, Appeal No. 20-117 at pp. 13-15.

The Second Circuit has made clear that 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 158, 163 (parent must express disagreement with a school district’s evaluation as a prerequisite to obtaining an IEE at public expense); see also, e.g., Application of a Student with a Disability, Appeal No. 21-091 at p. 52. The Second Circuit clarified further that: “[a] school has the right in the first instance to obtain a comprehensive evaluation upon which to structure a student’s IEP, and only if the child’s parents believe that the evaluation is insufficient can they seek an IEE at public expense for the school’s additional consideration.” D.S. v. Trumbull, 975 F.3d at 165-166.

Here, REDACTED’s mother clearly disagreed with the Department’s evaluations and expressed her disagreement in writing. She then clearly requested an IEE at public expense. As such a junction, the Department had two, and only two, avenues open to it: (1) “ensure that an independent education evaluation is provided at public expense” or (2) 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.” See 8 N.Y.C.R.R. §200.5(g)(1)(iv). The Department did neither; therefore, REDACTED’s mother is entitled to secure for REDACTED an IEE at public expense.

With respect to this case, it is also important to note that an IEE at public expense must be “comprehensive.” See Trumbull, passim. As a result, the Department should fund the collection of evaluations and the assessment that REDACTED’s parent seeks: neuropsychological, occupational therapy and speech evaluations and a vocational assessment. Such evaluations would constitute a comprehensive evaluation, as required by the regulations and the Second Circuit in Trumbull. This conclusion is supported by the Department’s willingness to perform, as stated in the Prior Written Notice document, a similar grouping of evaluations and assessments of REDACTED.

School districts may establish policies relating to IEEs, including “cost-containment measures.” Application of a Student with a Disability, Appeal No. 19-101 at p. 11. A district is permitted to establish “maximum allowable charges for specific tests to avoid unreasonable charge for IEEs;” however, “[w]hen enforcing reasonable cost containment criteria, the district must allow parents to opportunity to demonstrate that ‘unique circumstances’ justify an IEE that does not fall within the district’s cost criteria.” Id. at 11; see also Letter to Anonymous (OSEP October 9, 2002). Here, the Department did not present evidence of such maximum allowable charges or other “cost-containment measures.” As a result, after hearing the evidence from the witnesses as to the costs of their evaluations, I credit that testimony, and will grant the IEE at public expense at the amounts charged by the witnesses.

With respect to transportation expenses: as to REDACTED’s evaluation, there is no need for me to make a determination as to the Department’s responsibility for transportation expenses because REDACTED’s fee covers such transportation expenses. As to the occupational and speech evaluations and the vocational assessment, the Department should provide, as requested, MetroCards, or reimbursement for MetroCards, to REDACTED’s mother for round-trip transportation for REDACTED and her mother to the evaluation sessions.

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

• • Parent’s request for an IEE at public expense is granted.
• • The Department shall fund the following evaluations and assessment of REDACTED as components of a comprehensive IEE:
• • a neuropsychological evaluation conducted by REDACTED at the cost of $5,000.00;
• • an occupational therapy evaluation conducted by the REDACTED at the cost of $2,500.00;
• • a speech and language evaluation conducted by the REDACTED at the cost of $2,500.00; and
• • a vocational assessment conducted by REDACTED, or a comparably qualified provider, at the cost of $1,200.00.
• • The Department shall provide MetroCards, or reimbursement for MetroCards, to REDACTED’s mother for round-trip transportation for REDACTED and her mother to the evaluation/assessment sessions.
• • Within ten business days of receipt of the above evaluations and assessment, the Department shall convene a meeting to consider the above evaluations and assessment.

Dated: August 24, 2022

______________________________

JEAN MARIE BRESCIA, ESQ.

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the 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.

DOCUMENTATION ENTERED INTO THE RECORD

Parents’ Exhibits

Exhibit

Number Exhibit Date Pages

P - A Request for Evaluations (Initial) 10/30/20 3

P - B Prior Written Notice 12/21/20 4

P - C Email (Delivering Evaluations) 04/15/21 1

P - D IEE Request 04/23/21 3

P - E Email (Reminder of IEE Request) 04/28/21 1

P - F Due Process Complaint 11/19/21 4

P - G Affidavit of REDACTED 06/03/22 2

P - H Affidavit of REDACTED 05/24/22 2

P - I Affidavit of REDACTED 06/07/22 1

Footnotes

[1] The Demand is dated November 19, 2020. The year is a typographical error, and the Demand was filed on November 19, 2021. Tr. 25; Ex. F at 4.