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NAMES AND TITLES OF PERSONS WHO APPEARED AT THE DUE PROCESS HEARING:
For the Student:
1. REDACTED, Esq. for the parent, (hereinafter referred to as “Parent’s attorney”)
For the Department of Education:
1. REDACTED, Esq. appeared on behalf of the DOE, (hereinafter referred to as “District’s Representative”)
Identifying Information Term Used In FOFD and/or Exhibit List
REDACTED Parent
NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS (OATH)
SPECIAL EDUCATION HEARINGS DIVISION
REDACTED, a Minor, by and through his/her Parent(s),
PETITIONER
against
THE NEW YORK CITY
DEPARTMENT OF EDUCATION,
RESPONDENT
Dr. Oren Varnai, Esq.
Impartial Hearing Officer
FINDINGS OF FACT AND DECISION
I. Introduction
This proceeding arises under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400-1482; the federal regulations implementing IDEA, 34 C.F.R. §§ 300.1, et seq.; Article 89 of the New York State Education Law; and the New York State regulations at 8 NYCRR § Part 200, et seq.
The undersigned Impartial Hearing Officer (“IHO”) is a certified New York State Special Education Hearing Officer, employed by the New York City Office of Administrative Trials and Hearings (“OATH”) as a Special Education Impartial Hearing Officer, and meets all of the qualifications and requirements outlined in both federal and state statute which grant the IHO the authority to adjudicate this hearing. Furthermore, the IHO is not currently, nor has ever been, an employee of the NYC Department of Education, and does not have any personal or professional interest or bias that conflicts with his objectivity to hear this matter.
II. Background and Procedural History
A. Due Process Complaint Notice
Petitioner (Parent) is the parent of Student (“Student” or “Child”). On 8/26/2022, Petitioner filed a Due Process Complaint (“Complaint” or “DPC”) against Respondent, the New York City Department of Education (“NYC DOE” or “DOE” or “District”). The parent alleged that the District failed to provide the Student a free appropriate public education (“FAPE”) for the 2020-2021;2021-2022 school years, by, among other things, failure to conduct a comprehensive vocational assessment. The case was initially in front of IHO Powers, but following an amendment of the DPC on 7/6/2023, the undersigned was appointed to hear the matter.
During the school year in which Parent filed the DPC, Student was classified with Autism.
A Prehearing Conference took place on 8/7/2023, and the Parties consented to waive the disclosure requirements under the Commissioner’s Regulations and proceed to immediate hearing. The DOE did not present a case, and therefore, the sole claim of a denial of FAPE for the 2020-2021 and 2021-2022 is deemed to be true vis-à-vis the associated requested relief for an IEE of a vocational assessment. DOE did not object to an order awarding the IEE at reasonable market rate to be conducted by an evaluation of Parent’s choosing.
III. Findings of Fact and Decision
A. FAPE
The IDEA (20 U.S.C. §§ 1400-1482) contemplates two specific purposes designed (1) to ensure that students with disabilities have available to them a FAPE 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) to ensure that the rights of students with disabilities and parents of such students are protected.[1] The burden of proof is 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.[2] Here, the Parents are not seeking the remedy of tuition reimbursement.[3] Thus, the DOE has the burden of proof on all issues in dispute.
An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance, [4] establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum,[5] and provides for the use of appropriate special education services. 6A free and appropriate public education can be said to be offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE 6 See 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]. through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits.[7] "[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP."[8] The Supreme Court ruled that "[t]he IEP must aim to enable the child to make progress. After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement." [9]
Although school districts must comply with the checklist of procedures for developing a student's IEP and indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not,"[10] the Second Circuit explained that not all procedural errors render an IEP legally inadequate under the IDEA.[11] Under the IDEA, if procedural violations are alleged, an IHO may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits. [12]
An IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE.[13] A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction,"[14] but the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP."[15] "The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created,"[16] and an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents,"[17] is what is required. School districts are not required to "maximize" the potential of students with disabilities,[18] but are required to provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement.'"[19]
The IEP must be "reasonably calculated to provide some 'meaningful' benefit,"[20] and designed to be provided in the least restrictive environment (“LRE”).[21] An appropriate IEP must include a description of the Student’s present levels of academic achievement and functional performance,[22] and outlines annual goals specifically designed to address the Student’s needs resulting from his disability in order to make progress in the general education curriculum[23] through the use of appropriate special education services.[24] Although not every student can be expected to attend a regular education curriculum, the IEP “must be appropriately ambitious in light of his circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives."[25]
DOE did not present a case defending the vocational assessment it had conducted and did not object to a finding of Parent’s claim that Student had been denied a FAPE for the school years in question with respect to the vocational assessment. Therefore, DOE did not meet its burden at hearing.
B. Independent Educational Evaluation
1. Evaluation/Re-evaluation
A district must conduct an evaluation of a student where the educational or related services needs of a student warrant a reevaluation or if the student's parent or teacher requests a reevaluation.[26] A district need not conduct a reevaluation more frequently than once per year unless the parent and the district otherwise agree and at least once every three years unless the district and the parent agree in writing that such a reevaluation is unnecessary. [27]
A CSE may direct that additional evaluations or assessments be conducted to appropriately assess the student in all areas related to the suspected disabilities.[28] Any evaluation of a student with a disability must use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information about the student, including information provided by the parent, that may assist in determining, among other things the content of the student's IEP. [29]
A district must rely on technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors;[30] and ensure that a student is appropriately assessed in all areas related to the suspected disability, including, where appropriate, social, and emotional status. [31]
An evaluation of a student must be sufficiently comprehensive to identify all of the student's special education and related services needs, whether or not commonly linked to the disability category in which the student has been classified. [32]
2. IEE
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.[33] 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. [34]
An IEE may be requested by parents.[35] 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.”[36] A parent is entitled to only one IEE at public expense each time the public agency conducts an evaluation with which the parent disagrees. [37]
Upon the receipt of the request for an IEE, a school district must either make the evaluation available at public expense “without unnecessary delay” or must file a due process complaint requesting a hearing to “show that its evaluation is appropriate or that the evaluation obtained by the Parent is inappropriate.” "When an evaluation is conducted in accordance with [34 CFR 300.304 through 34 CFR 300.311] and a parent disagrees with the evaluation because a child was not assessed in a particular area, the parent has the right to request an IEE to assess the child in that area to determine whether the child has a disability and the nature and extent of the special education and related services that child needs.”[38] When a parent seeks an IEE to make up for a missing assessment, the district may not avoid either filing for due process or funding the IEE by simply conducting the missing assessment. [39]
An IEE may also be requested by an impartial hearing officer “as part of a hearing on a due process complaint.”[40] The Regulations do not provide limitations or guidance about hearing officer requests or directives for IEEs.
It has been held that a parent may request a district funded IEE in a DPC in the first instance, and it has also been noted that because this method can be used unfairly, a parent may be in a better position to elicit district funding of an IEE if the IEE was requested outside of the more formal context of an impartial hearing.[41] Where a request for IEEs was received for the first time in the parents' DPC, the state review officer determined that the district ought not to be faulted for attempting to defend the appropriateness of the evaluations it conducted at the resulting impartial hearing.[42] The Court in the Trumbull Bd of Educ. held that:
“The IDEA does not provide a statute of limitations for a parent's right to disagree with an evaluation for the purpose of obtaining an IEE at public expense. But that does not mean that a parent will be able to abuse the process to obtain a publicly funded IEE based on their disagreement with an old evaluation. … As a practical matter, a parent's right to disagree with an evaluation and obtain an IEE at public expense is tethered to the frequency with which the child is evaluated. And the IDEA establishes a logical timeframe in which a parent's right to request an IEE is actionable. "A parent is entitled to only one [IEE] at public expense each time the public agency conducts an evaluation with which the parent disagrees." 34 C.F.R. § 300.502(b)(5). Because the only evaluations that trigger a parent's right to an IEE at public expense are the initial evaluation and triennial reevaluations discussed in Section 1414 of the Act, a parent's right to an IEE at public expense ripens each time a new evaluation is conducted. The time within which a parent must express their disagreement with an evaluation and request an IEE depends on how frequently the child is evaluated. By default, triennial reevaluations must occur at least once every three years. 20 U.S.C. § 1414(a)(2)(B)(ii). Where, as here, a child is evaluated according to the default evaluation timeline, the parent must disagree with an evaluation within that three-year timeframe. By contrast, should a parent and school agree that the child be evaluated on a more frequent basis, see id. § 1414(a)(2)(A), (a)(2)(B)(i), the parent must disagree with any given evaluation before the child's next regularly scheduled evaluation occurs. For example, if a child is reevaluated each year, the logical time frame within which to contest the evaluation is one year. Otherwise, the parent's disagreement will be rendered irrelevant by the subsequent evaluation. The timeframe within which a parent can disagree must be adjustable because the evaluation that a parent may contest is a moving target.”
The rationale for Parents’ embedded rights to demand these independent evaluations exists because “[t]he IEE process attempts to level the playing field between parent and government by securing a parent’s ability to obtain an independent assessment of their child’s disability if the school’s falls short. It provides “parents access to an expert who can evaluate all the materials that the school must make available, and who can give an independent opinion,” and it ensures that parents “are not left to challenge the government without a realistic opportunity to access the necessary evidence, or without an expert with the firepower to match the opposition.” [43] Here, there is no dispute that a DOE vocational assessment had been conducted in the past, and that Parent disagreed with that evaluation. As the vocational assessment did not have a regular cycle for reevaluation based on the nature of the assessment, there was no dispute that Parent disagreed with the DOE evaluation, or a statute of limitation defense. In addition, DOE did not object to an order granting an IEE for a vocational assessment at reasonable market rate with a provider of Parent’s choosing.
IV. Orders
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS HEREBY:
1. ORDERED that, forthwith, DOE directly fund and/or reimburse Parent for an Independent Educational Evaluation in the form of a vocational assessment with a provider of Parent’s choosing at reasonable market rate.
2. All other claims and requested relief not addressed at the Due Process Hearing are dismissed with prejudice.
DATED: SO ORDERED
8/7/2023
Dr. Oren Varnai, Esq., IHO
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 proceedings 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.
IMPARTIAL HEARING OFFICER'S CERTIFICATION OF THE RECORD
I, Oren Varnai, Impartial Hearing Officer in this matter, do hereby certify that the below Index of Exhibits included within this Findings of Fact and Decision itemizes the entire record before me. I further certify that the materials included in the record were represented to me to be either the original or a true copy of the original materials that were provided to me in this matter.
DATED: CERTIFIED BY
8/7/2023
Dr. Oren Varnai, Esq., IHO
EXHIBITS
PARENT EXHIBITS
A. None None None
DOE’S EXHIBITS
1. None None None
IHO’S EXHIBITS
I. None None None
Footnotes
[1] 20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 239 [2009]; Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 [1982].
[2] Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85.
[3] Ex. P-A.
[4] See 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i].
[5] See 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii].
[7] Rowley, 458 U.S. at 206-07; 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]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005])
[8] Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998], quoting Rowley, 458 U.S. at 206; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009].
[9] Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. __, 137 S. Ct. 988, 999 [2017].
[10] R.E., 694 F.3d at 190-91.
[11] M.H., 685 F.3d at 245; A.C. v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003].
[12] 20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245.
[13] 20 U.S.C. § 1415[f][3][E][i].
[14] Rowley, 458 U.S. at 203.
[15] Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189.
[16] Endrew F., 137 S. Ct. at 1001.
[17] Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3d at 379.
[18] Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132.
[19] Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008].
[20] Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Endrew F., 137 S. Ct. at 1001.
[21] 20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132.
[22] 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i].
[23] 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii].
[24] 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v].
[25] Endrew F., 137 S. Ct. at 1000.
[26] 8 NYCRR § 200.4(b)(4); 34 CFR § 300.303(a)(2).
[27] 8 NYCRR § 200.4(b)(4); 34 CFR § 300.303(B)(1)-(2).
[28] 8 NYCRR § 200.4(b)(3).
[29] 20 U.S.C. § 1414[b][2][A]; 34 CFR 300.304(b)(1)(ii); see Letter to Clarke, 48 IDELR 77 [OSEP 2007].
[30] 20 U.S.C. § 1414[b][2][C]; 8 NYCRR 200.4(b)(6)(x); 34 CFR 300.304(b)(3).
[31] 20 U.S.C. § 1414[b][3][B]; 8 NYCRR 200.4(b)(6)(vii); 34 CFR 300.304(c)(4).
[32] 8 NYCRR 200.4(b)(6)(ix); 34 CFR 300.304(c)(6).
[33] 8 NYCRR § 200.1(z); 34 CFR § 300.502(a)(3)(i).
[34] 8 NYCRR § 200.5(g)(1); 34 CFR § 300.502(b).
[35] 8 NYCRR § 200.5(g)(1); 34 CFR § 300.502(b).
[36] 8 NYCRR § 200.5(g)(1)(iv); 34 CFR § 300.502(b)(2)(i)-(ii).
[37] 8 NYCRR § 200.5(g)(1); 34 CFR § 300.502(b)(5).
[38] Letter to Baus, 65 IDELR 81 (OSEP 2015).
[39] Letter to Carroll, 68 IDELR 279 (OSEP 2016).
[40] 8 NYCRR § 200.5(g)(2); 34 CFR § 300.502(d).
[41] See, e.g. Application of a Student with a Disability, Appeal No. 21-170; Application of the Dep't of Educ., Appeal No. 21-135; Application of a Student with a Disability, Appeal No. 19-094.
[42] Application of a Student with a Disability, Appeal No. 21-172.
[43] D.S. v. Trumbull Bd of Educ., quoting Schaffer, 546 U.S. at 60-61.