New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 570870 - NYC: 225026

FINDINGS OF FACT AND DECISION

Case Number: 225026

Student’s Name: REDACTED

Hearing Requested By: Parent

Dates of Hearing: June 8, 2022

July 7, 2022

July 28, 2022

Actual Record Close Date: August 1, 2022

Hearing Officer: Jean Marie Brescia, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

June 8, 2022 For the Parent:

None

For the Department:

REDACTED, District Representative

July 7, 2022 For the Parent:

REDACTED, Advocate For the Department:

REDACTED, District Representative

July 28, 2022 For the Parent:

REDACTED, Advocate For the Department:

REDACTED, District Representative

On May 27, 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Act (“IDEA”), 20 U.S.C. §1415(f), in the matter of REDACTED,^[1] after the appointment of another hearing officer was rescinded. REDACTED’s parents requested the hearing on March 9, 2022: (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; and (2) seeking independent evaluations of REDACTED, including a neuropsychological evaluation, an OT evaluation, “and all others as needed,” at public expense (an “IEE”). Ex. A at 4.

A pre-hearing conference was scheduled for June 8, 2022. Neither Parents’ counsel or advocate nor REDACTED’s parents appeared. The Department represented that it had conducted an evaluation of REDACTED, received a neuropsychological evaluation from REDACTED’s parents, and held a CSE meeting at which REDACTED was found ineligible for special education and that the case was “inactive.” Tr. 2-5. The hearing was conducted on July 7 and July 28, 2022.

At the hearing, the Department did not present the testimony of witnesses or offer documents in evidence. Tr. 34, 36, 38. REDACTED’s parents did not present the testimony of witnesses and offered three documents in evidence. Tr. 45-46.

The Department made an application on the record for an extension of the compliance date. Tr. 8. The application was granted by an Order of Extension dated June 8, 2022. The record closed on August 1, 2022, upon the hearing officer’s receipt and review of the transcript of the last day of hearing, and the Actual Record Close Date is August 1, 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^[2]

• • REDACTED is a REDACTED year-old boy who attends general education classes at REDACTED, a nonpublic school. Ex. A; Ex. C at 1.
• • By letter signed on December 22, 2021, REDACTED’s parent requested an evaluation of REDACTED to determine his eligibility for special education and services. Ex. B.
• • On December 30, 2021, REDACTED was evaluated by a psychologist, who was not employed by the Department, who prepared a written Confidential Neuropsychological Report dated February 24, 2022. Ex. C.
• • There is no dispute that on January 22, 2022, REDACTED’s parent(s) signed a consent for the Department to evaluate REDACTED. Tr. 55-56.
• • On March 9, 2022, REDACTED’s parents, through counsel, filed a Request for Due Process Impartial Hearing. Ex. A. The Request alleged that the Department failed to timely conduct an evaluation of REDACTED within 60 days of REDACTED’s parent’s request for an evaluation. As relief, the Request sought independent evaluations of REDACTED, including a neuropsychological evaluation, an OT evaluation, “and all others as needed,” at public expense (the “IEE”). Ex. A at 4.
• • There is no dispute that REDACTED’s parents forwarded the Confidential Neuropsychological Report to the CSE on or about April 4, 2022. Tr. 35, 49.
• • There is no dispute that the CSE convened on May 4, 2022, considered, among other evaluative material, the Neuropsychological Report provided by REDACTED’s parents, and found REDACTED ineligible for special education. Tr. 35, 58.

Arguments of the Parties The Department representative argued, based upon her review of the SESIS records, that REDACTED’s parent brought REDACTED to the CSE-scheduled psychoeducational evaluation on February 18, 2022, and CSE personnel did not conduct the psychoeducational evaluation because REDACTED had recently been evaluated by the private psychologist. Tr. 52-54. The Department did not provide sworn testimony and did not offer in evidence a print-out of the SESIS record.

Parents’ advocate argued that the Department did not conduct a timely evaluation of REDACTED, in that 60 days had passed from the date REDACTED’s parents requested an evaluation on December 22, 2021, that no evaluation had been conducted by the Department, and that REDACTED’s parents were therefore entitled to reimbursement for the neuropsychological evaluation that they had obtained.. Tr. 46-47, 54-55.

Parent’s advocate represented that the evaluation cost $6,000.00 and stated that his clients would agree to reimbursement of $5,000.00. Tr. 49.

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); Schaffer v. Weast, 546 U.S. 49, 51 (2005); Board of Education v. Rowley, 458 U.S. 176, 179-181 (1982). A school district offers a student a free appropriate public education when (1) it complies with the procedural requirements of the IDEA and (2) the IEP developed by the district is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1, 137 S. Ct. 988, 999 (2017); see also Rowley, 458 U.S. at 207; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 (2d Cir. 2014); R.E. v. New York City Dep’t of Educ., 694 F.3d 167, 189-90 (2d Cir. 2012).

A hearing officer may determine that a school district denied a student a FAPE based upon the district’s procedural errors in the development of the IEP, deficiencies in the substance of the educational program set forth in the IEP, or both. See L.O. v. New York City Dep’t of Educ., 822 F.3d, 95, 109 (2d Cir. 2016); see also 20 U.S.C. § 1415(f)(3)(E)(i); 8 N.Y.C.R.R. § 200.5(j)(5)(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.

Are REDACTED’s Parent Entitled to an Independent Neuropsychological Evaluation of REDACTED at Public Expense?

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); 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. D.S. v. Trumbull Bd. of Educ., 975 F.3d 152, 158, 163 (2d Cir. 2020) (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.

REDACTED’s parent’s Due Process Complaint does not express disagreement with an evaluation conducted by the Department.

With respect to this case, it is also important to note that a parent may disagree the “scope” of a district’s evaluation. 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.”). While the language of the Request for Due Process Impartial Hearing references the evaluations that REDACTED’s parents seek, it does not state disagreement with a DOE evaluation that has already occurred, which is the “trigger” that the Second Circuit requires in Trumbull. As a result of the above legal conclusions, I am not in a position to award the requested IEE at public expense.

I acknowledge that the CSE considered the Neuropsychological Report at the May 4 CSE meeting. This is precisely what the relevant Regulations require. 8 N.Y.C.R.R. §200.5(g)(1)(vi). This, however, does not overcome Trumbull’s directives that the “trigger” for requesting an IEE at public expense is disagreement with an evaluation that a school district has conducted.

In addition, even if I were to grant an IEE at public expense in this proceeding, since there was no proof offered of the cost of the Neuropsychological Report or evidence of REDACTED’s parents’ obligation to pay for the evaluation, I would not be in a position to award them reimbursement or direct funding to the provider.

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

REDACTED’s parents’ request for reimbursement for the Neuropsychological Report is denied.

Dated: August 9, 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

A 3/9/2022 Impartial Hearing Request 5 pages

B 12/22/2021 Letter from Parent to DOE 1 page

C 2/24/2022 Neuropsychological Report 14 pages

Footnotes

[1] REDACTED’s last name is spelled “REDACTED” on the documents admitted in evidence. However, since REDACTED’s last name is spelled “REDACTED” in the Department of Education’s computer system, I must use “REDACTED” in this decision in order to submit it to the Impartial Hearing Office.

[2] Since neither party presented any testimony in this proceeding, these Findings are based upon the three documents admitted in evidence and facts which were not in dispute.