New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 592203 NYC: 242822

FINDINGS OF FACT AND DECISION

Student’s Name: [REDACTED]

School District: N.Y.C. Dept. of Ed.,

Impartial Hearing Officer: Mercedes Cesaratto

Date of Filing: 11/25/2022

Hearing Requested by: Parent(s)

Date of Hearing: 5/16/2023

Record Close Date: 07/18/2023

Date of Decision: 07/19/2023

NAMES AND TITLES OF PERSONS WHO APPEARED

MAY 16, 2023

For the Student:

[REDACTED], Esq., (hereinafter Parent’s Attorney)

REDACTED (herein after Parent)

For the Department of Education:

[REDACTED], Esq., (hereinafter District Representative/ DOE Attorney)

JURISDICTION AND PROCEDURAL BACKGROUND

The due process hearing was held, and a decision in this matter is being rendered, pursuant to the Individuals with Disabilities Education Act (hereinafter, “IDEA”), 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq., and the New York State Education Law, Educ. Law Art. 89 § 4404 et seq., and its implementing regulations, 8 NYCRR § Part 200.

On November 28, 2022, a due process complaint (“DPC”) was filed against the New York City Department of Education (“DOE/District”) by the Parent’s Attorney, on behalf of the Parent (“Parent”) and on behalf of their child (“Student”), under Case No. 242822, pursuant to the Individuals with Disabilities Education Act (“IDEA”, or the “Act”) [20 U.S.C. § 1415(f)] and Section 4404(1) of the New York State Education Law (“Education Law”). (Ex. P- A).^[1] On January 23, 2023, I was appointed as Impartial Hearing Officer (“IHO”). On February 2, 2023, an initial pre-hearing was held with the representatives of the parties. On May 16, 2023, an impartial hearing on the merits was held.

The DPC asserts the DOE did not provide the Student with a free and appropriate public education (FAPE) for the 2022-2023 school year by failing to: (i) recommend an appropriate preschool program for the student, (ii) develop an appropriate IEP, (iii) implement the recommendations in the Student’s IEP, and (iv) fund an Independent Educational Evaluation (IEE). As relief for the denial of FAPE, Parent is requesting compensatory education, prospective placement in a full-day preschool special 12-month program, and an independent Neuropsychological evaluation. The District submitted proposed exhibits D-1 through D-6 which were admitted into evidence with no objection from Parent’s attorney. The District did not present any witnesses. The District stated they were not presenting a Prong 1 case with respect to the allegation of failing to provide the Student with a FAPE for the 2022-2023 school year. Parent’s attorney submitted proposed exhibits P-A through P-G which were admitted into evidence with no objection from the District. The Parent testified via affidavit and direct testimony. The Parent submitted a closing brief attached as an IHO exhibit. The District did not submit a closing brief or offer a closing statement. A list of the documentary evidence in this proceeding is appended to this Order.

BACKGROUND AND POSITIONS OF THE PARTIES

The Student is REDACTED years old and classified as a Preschool Student with a Disability. (Ex. P-A). The Student received Early Intervention (“EI”) services which ended on December 31, 2022. (Ex. P-D) prior to transitioning to the Committee on Preschool Special Education (“CPSE”). As part of the transition the Student received initial evaluations conducted in August 2022. (Ex. D-1 through D-6). On September 22, 2022, the District developed an IEP for the Student recommending five (5) hours per week of direct Special Education Itinerant Teacher Services (“SEIT”) in a group of two (2) students; individual Speech-Language Therapy (“SLT”) twice a week for 30-minute sessions; and individual Occupational Therapy (“OT”) twice a week for 30-minute sessions to be implemented on January 3, 2023. (Ex. P-B; G) Parent contends he attended the IEP meeting of September 22, 2022 and expressed concerns regarding the IEP recommendations and program. Parent further alleges the IEP goals require a center-based program to be implemented, rather than the recommended home-based SEIT program. Parent also contends he disagreed with the initial evaluations conducted by the District. (Ex. P-A) Parent requested an independent neuropsychological evaluation so that the CPSE can develop an appropriate IEP for the Student. (Ex. P-C) The Parent further states the District was to implement the program and services on January 3, 2023. However, the District failed to implement most of the program and services recommended in the IEP. The Parent testified the Student only recently started to receive Speech therapy twice a week, starting in mid-March 2023, instead of January 3, 2023. (Tr. 12; 14; 25-26) The Student has not been provided with any of the recommended SEIT or occupational therapy as mandated in the Student’s IEP. (Tr. 26)

FINDINGS OF FACT AND DECISION

After considering the testimony and documentary evidence presented by the Parent, my findings of fact are as follows: The Parent The Parent credibly testified that despite not agreeing with the recommendations, programs or the District’s evaluations of the Student, he tried to locate a learning center/preschool but unfortunately none would accept the Student either because there was no available space or they could not handle the Student’s disability. (Ex. P-G; Tr.22-24, 25). The Parent also testified that he reached out to the District repeatedly and explained he could not locate a program for the Student. (Ex. P-E, F) The District was unable to locate a program for the Student either. The Parent further testified the Student should have been mandated to receive more related services than the recommendations in the IEP since the Student does not speak and is unable to communicate. (Tr.

24) The Parent testified the Student can only utter unintelligible sounds and is unable to follow instructions in her own language. (Ex. Tr. 24) The Parent further testified the Student is not in any academic setting at all and does not have the ability to interact with any peers in an academic setting. (Ex. Tr. 26-27).

LEGAL STANDARDS

Free Appropriate Public Education

Both the IDEA and the Education Law provide that children with disabilities are entitled to a FAPE. 20 U.S.C. § 1400 (d)(1)(A); Education Law §§ 4402(2)(a), (b)(2). A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive IEP. 20 U.S.C. §§ 1401(9), (29). 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). 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. ex rel. Joseph F. v. Douglas County Sch. Dist. RE-1, 137 S. Ct. 988, 999 [2017]). If a procedural violation has occurred, relief is warranted only if the procedural violation affected the student's right to a FAPE. Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381-82 (2d Cir. 2003; W.G. v. Bd. of Trustees of Target Range School Dist. No. 23, 960 F. 2d 1479, 1484 (9th Cir. 1992); J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 (2d Cir. 2000); 8 NYCRR § 200.5(4)(ii). School districts are obligated to provide the special education services listed in a student’s IEP. 20 U.S.C. § 1401(9)(D); 34 C.F.R. § 300.17(d).

The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE. 20 U.S.C. § 1415(f)(3)(E)(i). A school district offers a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction” (Rowley, 458 U.S. at 203). However, the “IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP” (Walczak v. Florida Union FreeSchool Dist., 142 F.3d 119, 130 [2d Cir. 1998]; Rowley, 458 U.S. at 189). “The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created” (Endrew F., 137 S. Ct. at 1001). The IDEA ensures an “appropriate” education, “not one that provides everything that might be thought desirable by loving parents” (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F. 2d 563, 567 [2d Cir. 1989]). Additionally, school districts are not required to “maximize” the potential of students with disabilities (Rowley, 458 U.S. at 189; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide “an IEP that is ‘likely to produce progress, not regression,’ and . . . affords the student with an opportunity greater than mere ‘trivial advancement’” (Cerra v. Pawling Central School Dist., 427 F.3d 186, 195 [2d Cir. 2005], quoting Walczak, 142 F.3d at 130). The IEP must be “reasonably calculated to provide some ‘meaningful benefit’” (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see also Endrew F., 137 S. Ct. at 1001 [holding that the IDEA “requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances”]; Rowley, 458 U.S. at 192).

In actions brought under the IDEA alleging a denial of FAPE, “the court shall grant such relief as the court determines is appropriate”, limited only by the restriction that “the relief is to be appropriate in light of the purpose of the Act” (Doe v. East Lyme Bd. of Educ., 790 F.3d 440, 454 [2d Cir. 2015] [citation omitted]). Equitable considerations are relevant in fashioning relief, and the court enjoys broad discretion in doing so. Florence County Sch. Dist. Four v. Carter ex rel. Carter, 510 U.S. 7, 16 (1993). Although an award of damages is not available under the IDEA (see Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 486 [2d Cir. 2002]), “a court may award various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies” (Doe v. East Lyme, 790 F.3d at 454).

Under the Education Law, school districts have the burden of proof, including the burden of persuasion and the burden of production, in due process hearings, except that a parent or person in parental relationship seeking tuition reimbursement for a unilateral parental placement has the burden of persuasion and the burden of production on the appropriateness of such placement. Education Law § 4404(1)(c); T.K. and S.K. ex rel. L.K. v. New York City Dept. of Educ., 810 F.3d 869, 875 (2d Cir. 2016); C.F. ex rel. R.F. and G.F. v. New York City Dept. of Educ., 746 F.3d 68, 76 (2d Cir. 2014), R.E. v. New York City Dept. of Educ., 694 F.3d 167, 184-85 (2d Cir. 2012).

A school district’s failure to implement a student’s IEP constitutes a denial of FAPE under the IDEA. D.C. ex rel. E.B., 950 F. Supp. 2d at 509; Van Duyn ex rel. Van Duyn v. Baker Sch. Dist. 5J, 502 F.3d 811, 821 (9th Cir. 2007) (holding that a failure to implement an IEP may deny a child a FAPE and give rise to a claim under the Act). However, a party challenging the implementation of an IEP “must demonstrate that the school board or other authorities failed to implement substantial or significant provisions of the IEP.” D.D-S v. Southold Union Free Sch. Dist., 2011 U.S. Dist. LEXIS 100809, at *40 (E.D.N.Y. 2011), quoting Houston Ind. Sch. Dist. v. Bobby R., 200 F.3d 341, 349 (5th Cir. 2000).

To show a denial of FAPE based on a failure to implement an IEP, a party must establish more than a de minimis failure to implement all elements of the IEP, and instead must demonstrate that the school board or other authorities failed to implement substantial or significant provisions of the IEP. Houston Indep. Sch. Dist., 200 F.3d at 349; Fisher v. Stafford Township Bd. of Educ., 289 Fed. App’x 520 (3d Cir. Aug. 14, 2008); Couture v. Bd. Of Educ., 535 F. 3d 1243 (10th Cir. 2008).

Denial of FAPE

In IDEA impartial due process proceedings conducted in New York, the burden is on the DOE to establish that it provided a student with a FAPE. M.W. ex rel. S.W. v. New York City Dept. of Educ., 725 F.3d 131, 135 (2d Cir. 2013); A.M. ex rel. E.H. v. New York City Dept. of Educ., 845 F.3d 523, 535 (2d Cir. 2017). The District did not present a case, or offer any witness testimony into evidence in this proceeding. The District stated they were not presenting a prong I case. (Tr.

9) Therefore, the District failed to sustain their burden under the Education Law and failed to demonstrate they provided the Student with a FAPE for the 2022-2023 school year. Furthermore, the District did not object to any of the evidentiary material submitted by the Parent in support of their claims. The District failed to sustain their burden under the Education Law and the record establishes that the District failed to provide the Student with a FAPE for the 2022-2023 school year.

Compensatory Education

An appropriate equitable remedy for a denial of FAPE can include an award of compensatory education. E.M. v. New York City Dept. of Educ., 758 F.3d 442, 451 (2d Cir. 2014). The Second Circuit has stated, “[t]he IDEA allows a hearing officer to fashion an appropriate remedy, and we have held compensatory education is an available option under the Act to make up for denial of a free and appropriate public education.” P. ex rel. Mr. & Mrs. P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008).

Compensatory education is “prospective equitable relief” that requires a school district to fund education “as a remedy for any earlier deprivations in the child’s education.” Somoza v. New York City Dept. of Educ., 538 F.3d 106, 109 n.2 (2d Cir. 2008) (citations omitted). Courts “may award various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies.” Doe v. East Lyme Bd. of Educ., 790 F.3d 440, 454 (2d Cir. 2015). Unlike ordinary IEPs “that need only provide ‘some benefit,’ compensatory awards must do more—they must compensate.” Reid v. Dist. of Columbia, 401 F.3d 516, 525 (D.C. Cir. 2005) (emphasis in original). An award of compensatory education “must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place.” Reid, 401 F.3d at 518, 524. Compensatory education awards may include reimbursement for out-of-pocket educational expenses paid by a parent for services not delivered to a student, provided the school district’s failure to provide those services constitutes a denial of FAPE and the services are an appropriate alternative. Foster v. Bd. Of Educ., 611 Fed. App’x 874, 878-79 (7th Cir. 2015); Batchelor v. Rose Tree Media Sch. Dist., 759 F.3d 266, 277-78 (3d Cir. 2014).

Requested Relief

The relief request by the Parent is equitable in nature, as the Parent is asking the IHO to devise an appropriate remedy to address the District’s failure to provide the Student with a FAPE for the 2022-2023 school year. Specifically, however, the Parent has requested that the IHO order the Student be prospectively placed in a Full day preschool special class 12-month program. (Ex. P-A; Tr. 15). The record reflects that the CPSE developed an IEP which recommended five (5) sessions per week of direct SEIT 2:1- 60 minutes per session; SLT 1:1, two (2) times per week, 30 minutes sessions; and OT 1:1 two (2) times per week, 30 minute sessions. The District failed to implement significant portions of the IEP. The District failed to implement the SEIT program, and the related services of OT. The District recently provided some of the SLT starting in mid-March 2023, instead of January 3, 2023. (Ex. Tr. 25-26) As noted above, the District has not met its burden of proof to demonstrate that this placement satisfied a FAPE. Further, the District has conceded they were not presenting a Prong I case in this matter. (Ex. Tr. 9)

As to the relief requested, the Supreme Court has emphasized that relief under the IDEA depends, in part, on “equitable considerations”. See Sch. Comm. of Town of Burlington, Mass. v. Dept. of Educ. of Mass., 471 U.S. 359, 374 (1985); Carter, 510 U.S. at 15-16. As previously discussed, “when a school district denies a child a FAPE, the courts have ‘broad discretion’ to fashion an appropriate remedy” (Boose v District of Columbia, 786 F. 3d 1054, 1056 [D.C. Cir. 2015], citing Carter, 510 U.S. at 15-16). In actions brought under the IDEA alleging a denial of FAPE, “the court shall grant such relief as the court determines is appropriate”, limited only by the restriction that “the relief is to be appropriate in light of the purpose of the Act” (Doe v. East Lyme, 790 F.3d at 454).

An appropriate equitable remedy for a denial of FAPE can include an award of compensatory education. E.M. v. New York City Dept. of Educ., 758 F.3d 442, 451 (2d Cir. 2014). The Second Circuit has stated, “[t]he IDEA allows a hearing officer to fashion an appropriate remedy, and we have held compensatory education is an available option under the Act to make up for denial of a free and appropriate public education” (P. ex rel. Mr. & Mrs. P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008). Compensatory education is “prospective equitable relief” that requires a school district to fund education “as a remedy for any earlier deprivations in the child's education” (Somoza v. New York City Dept. of Educ., 538 F.3d 106, 109 n.2 [2d Cir. 2008]). Courts “may award various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies” (Doe v. East Lyme, 790 F.3d at 454). Unlike ordinary IEPs “that need only provide ‘some benefit,’ compensatory awards must do more -- they must compensate”, and “hearing officers may award ‘educational services . . . to be provided prospectively to compensate for a past deficient program’” (Reid ex rel. Reid v. Dist. of Columbia, 401 F.3d 516, 522, 525 (D.C. Cir. 2005) (emphasis in original). “If IDEA permits reimbursement for educational services, courts have reasoned, then it must also allow awards of the services themselves” (Reid, 401 F.3d at 522) (citations omitted). Compensatory education, therefore, is a “replacement of educational services the child should have received in the first place” (Reid, 401 F.3d at 518).

The Second Circuit has not taken a preferred approach, opting instead as a general practice to “leave the mechanics of structuring the compensatory education award to the district court’s sound discretion”, so long as “the relief is [] appropriate in light of the purpose of the Act” (Doe v. East Lyme, 790 F.3d at 454, 457; accord L.O. ex rel. K.T. v. New York City Dept. of Educ., 822 F.3d 95, 125 [2d Cir. 2016]; see also Student X. v. New York City Dept. of Educ., 2008 WL 4890440, at *26 [E.D.N.Y 2008] [noting that “the Second Circuit has not articulated a test for determining how [compensatory education] services are calculated”, and awarding compensatory relief equal to the amount of time the student was deprived of services]). In calculating an award, a court can also consider “whether compensatory education should be limited to the kinds of services specified in the [IEP], or encompass analogous educational services appropriate to the Student’s current’s needs”; however, the ultimate award “must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place” (Doe. v. East Lyme, 790 F.3d at 457) (internal citations omitted).

The Parent has a responsibility to identify the specific remedy she is seeking so that the IHO can craft an appropriate remedy for the DOE’s failure to provide the Student with a FAPE for the years at issue. See JKG by JK and JKG v. Wissahickon Sch. Dist., 2021 WL 1122526, at *8 (E.D. Pa. 2021), [noting that “[w]hile the Court has discretion to fashion a remedy that it deems appropriate, the Court cannot unilaterally supply the facts necessary to reach such a decision”]; Butler v. Dist. of Columbia, 275 F. Supp. 3d 1, 5 (D.D.C. 2017) [holding that a hearing officer “must solicit the evidence necessary to determine the student’s specific educational deficits resulting from his loss of FAPE and the specific compensatory measures needed to best correct those deficits”] [internal quotes and citation omitted].

Here, the Parent has identified the specific remedy he is seeking and has provided documentary evidence and testimony in support of the request for compensatory relief. The Parent has requested compensatory education for the Student, that should have placed the Student in the same position had the Student been afforded a FAPE. The Parent has demonstrated the Student is entitled to 24 weeks of CPSE services during the six (6) month period from January 2023 through June 2023. Therefore, the Parent is requesting the Student be provided with 48 occupational therapy sessions (2x a week for 24 weeks); 120 hours of SEIT (5x a week for 24 weeks); and 20 sessions of speech therapy (2x a week for 10 missed weeks).

Additionally, the District did not present any witness testimony or documentary evidence to explain or defend the appropriateness of the District’s recommended program for the 2022-2023 school year. Furthermore, the District failed to address the Parent’s legitimate questions concerning the basis for the recommendation or help in obtaining a program for the Student. The Supreme Court’s admonition that “[a] reviewing court may fairly expect those authorities [school district staff] to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances” (Endrew F., 137 S.Ct. at 1002) (emphasis supplied). (A.M. ex rel. E.H., 845 F.3d at 545).

As previously noted, an award of prospective equitable relief is an available remedy for a school district’s denial of FAPE. See Doe v. East Lyme, 790 F.3d at 454 [holding that a court may award various forms of retroactive and prospective equitable relief under the IDEA]. “While ‘retrospective relief [is] designed to compensate for yesterday's IDEA violations, . . . prospective relief [is] aimed at ensuring that the child receives tomorrow the education required by IDEA’” (Collette v. Dist. of Columbia, 2019 WL 3502927, at *14 [D.D.C. 2019], quoting Branham, 427 F.3d at 11 (emphasis in original).

Here, in addition to the compensatory education relief requested above, the Parent also seeks relief in the form of an order requesting prospective placement in a non-State approved full day preschool special class 12-month program with related services, including special transportation. Although prospective awards under the IDEA can include private placements (see Draper v. Atlanta Indep. Sch. System, 518 F.3d 1275, 1284-1286 [11th Cir. 2008]; Branham, 427 F.3d at 11-12; Eley v. Dist. of Columbia, 2012 WL 3656471, at *11 [D.D.C. 2012]), courts have generally disfavored ordering prospective private placements and have instead directed school districts to reconvene and revise a student’s IEP for the purpose of recommending an appropriate program and placement for the student. See Adams v. Dist. of Columbia, 285 F. Supp. 3d 381, 393 (D.D.C 2018), noting with approval the hearing officer's finding “that the directives of IDEA would be best effectuated by ordering an IEP review and revision, rather than prospective placement in a private school”; G.G. ex rel. Gersten v. Dist. of Columbia, 924 F. Supp. 2d 273, 282 (D.D.C. 2013), noting that “the consideration of prospective placement is frustrated without an IEP and an accompanying determined placement”, and determining that prospective placement “should not be addressed by this Court, but instead, by the . . . IEP team, as soon as practicable”; Eley, 2012 WL 3656471, at *11, holding that prospective placement should not be addressed by the court, but by the IEP team.

Under the facts and circumstances here, the Parent has demonstrated that the Student is entitled to equitable relief in the form of an IEP that places the Student in a full day preschool special class 12 month program. The rationale for ordering the District to defer the Student’s case to the REDACTED to consider, identify and recommend an appropriate full day preschool special class 12-month program and placement for the Student is supported by the evidence.

Accordingly, the CPSE will be directed to immediately convene and develop an appropriate IEP for the Student and to consider deferring the Student to the REDACTED to recommend an appropriate non-State approved full day preschool special class 12-month program, with related services, including special transportation for the Student, consistent with this decision. Independent Education 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, establish 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 Application of a Student with a Disability, Appeal No. 08-052; Application of a Student with a Disability, Appeal No. 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).

“A district must ensure that the student is appropriately assessed in all areas related to the suspected disability, including, where appropriate, social and emotional status (20 U.S.C. §1414[b][3][B]; 34 CFR 300.304[c][4]; 8 NYCRR 200.4[b][6][vii]). 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 (34 CFR 300.304[c][6]; 8 NYCRR 200.4[b][6][ix].” Application of a Student with a Disability, Appeal No. 22-004 at 11.

A parent may express disagreement with a district’s evaluations via a due process complaint and need not even identify specific reasons for such disagreement, in order to trigger the entitlement to an IEE. (See Application of a Student with a Disability, Appeal No. 19-094 at pp. 6-7). In Appeal No. 19-094, the SRO noted, “Contrary to the district’s argument that a claim for an IEE cannot be raised for the first time in a due process complaint notice, a parent may file a due process complaint notice with respect to ‘any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate education to such student’ (8 NYCRR 200.5(i)[1]; see 20 U.S.C. § 1415[b][6]-[7]; 34 CFR 300.503[a][1]-[2], 300.507[a][1]).” Id. at 7. The SRO’s decision in Appeals No. 19-094 rejecting the school district’s argument or appeal that has equal applicability here: “Absent any requirement that the parent express her disagreement with the results of a district’s evaluation in a specific format, there is no reason why a due process complaint notice may not serve the function of expressing the parent’s disagreement to the district.” Id.; see also Application of a Student with a Disability, Appeal No. 22-008, at 38 n. 26 (“where the parents requested the IEE in the due process complaint notice, it was incumbent on the district to respond, yet there is no evidence in the hearing record that the district took advantage of the resolution process to agree to fund the IEE (see 34 CFR 300.510[a]) or set out to defend its evaluation of the student during the impartial hearing”) (affirming the IHO’s decision ordering the district to reimburse the parent for the costs of a psychoeducational evaluation).

In this case, the Parent, expressly raised disagreement with the District’s evaluation via the DPC dated November 25, 2022, (filed on November 28, 2022), noting the Student’s needs “need to be determined by an independent educational evaluator at Department expense.” (Ex. P-A3) The Parent further testified on cross examination that he objected to the evaluations conducted by the CPSE in September 2022 prior to the filing of the DPC (Ex. Tr. 25 at 3-13). The Parent did not receive a response from the District on his request for an IEE. Therefore, the Parent followed up with a letter to the District requesting an IEE, again expressing disagreement with the evaluations conducted by the District. (Ex. P-C) The Parent expressed disagreement with the District’s evaluations in multiple respects; i.e., (i) the District’s evaluation was insufficient to assess the Student’s special education needs, (ii) the District’s evaluation contained material deficiencies and failed to appropriately and thoroughly assess the Student in all areas related to her suspected disability. (Ex. P-A; C) In addition, the DPC placed the District on clear notice as to the component evaluations requested by the Parent as part of a comprehensive IEE. (Ex. P- A).

Moreover, it is fundamental that the CPSE’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 Application of Student with a Disability, Appeal No. 11-126 at 20. The regulations do not provide limitations or guidance about hearing officer requests or directives for IEEs.

The Second Circuit’s decision in Trumball v. Board of Educ., 975 F.3d 152 (2d Cir. 2020) is not properly read to limit the Parent’s request here for the requested evaluations, because the Parent is challenging the entirety of the evaluations conducted by the District in the DPC and is requesting comprehensive IEE’s tailored to the Student’s issues. Furthermore, the District did not file a request for a due process hearing defending their evaluations. The District is merely alleging the Parent did not disagree with the evaluations conducted by the District, which is contrary to the evidence in this case, as the Parent clearly disagreed with the District’s evaluations in September 2022 and in their DPC. (Ex. Tr. 25 at 3-13; P-A3; P-C). See also Application of a Student with a Disability, Appeal No. 22-008, at 37 n. 25 (“Guidance for the United States Department of Education Office of Special Education Programs (OSEP) indicates that if a parent disagrees with an 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’ (Letter to Baus, 65 IDELR 81 [OSEP 2015]; see Letter to Carroll, 68 IDELR 279 [OSEP 2016]).” Here, the District has neither provided the independent evaluation requested, nor initiated a hearing to demonstrate the appropriateness of its actions. The District has failed, therefore, to carry its burden of proof and production that the evaluations the District conducted assessed the Student in all areas of the Student’s suspected disabilities.

I do not find the District’s argument compelling. The Parent credibly testified he expressed his concerns and objections to the District’s evaluations in September 2022 and in the DPC. (Ex. P-A3; Tr. 25) Thus, the DOE has not refuted the Parents’ entitlement to an evaluation, nor challenged the amount requested for the IEE. (see, e.g., Application of Student with a Disability, Appeal No. 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 requested in the DPC and in Parent’s exhibit C. The Student requires a comprehensive independent educational evaluation so that the Student’s 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 the independent educational neuropsychological evaluations requested, funded at public expense.

I have reviewed the parties’ remaining contentions and find them to be either unnecessary to this decision, without merit, beyond my jurisdiction, or without sufficient basis in the record for a finding. Accordingly, any relief not specifically discussed in this decision is denied, and all the Parent’s remaining claims not discussed herein are dismissed with prejudice.

DECISION AND ORDER

Based on the above, it is hereby:

1. ORDERED, that the District failed to provide a FAPE to the Student for the 2022-2023 school year; and it is further

2. ORDERED, that the District shall fund a total of 120 hours of compensatory direct SEIT services for the Student; 48 hours of Occupational Therapy; and 20 hours of Speech and Language Therapy to be provided by independent qualified instructors/providers selected by the Parent, who shall be paid at reasonable market rates consistent with the rates that have been paid by the Implementation Unit of the DOE’s impartial hearing office; and it is further

3. ORDERED, that the DOE shall make direct payments to the SEIT, OT and SLT providers within thirty (30) days of receipt of each of the provider’s invoices for such services; and it is further

4. ORDERED, that the District shall fund an Independent Educational Evaluation, specifically, a neuropsychological evaluation, to be conducted by a qualified evaluator of the Parent’s choosing at market rate; and it is further

5. ORDERED, that the District shall reimburse the Parent or make a direct payment to the independent educational evaluator within 30 days of receipt of the invoice for the neuropsychological evaluation; and it is further

6. ORDERED, that the CPSE will be directed to immediately convene within 14 days of receiving this order to develop an appropriate IEP for the Student and to consider deferring the Student to the CBST to recommend an appropriate nonpublic full day preschool special education 12-month program, with related services, including special transportation, consistent with the findings and recommendations in this decision.

SO ORDERED

Dated: July 19, 2023 s/ Mercedes Cesaratto

Mercedes Cesaratto

Impartial Hearing Officer

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.

DISTRICT EVIDENCE

1. Preschool Student Evaluation Summary Report 8/2022 4 pages DOE

2. Bilingual Social History 8/03/2022 3 pages DOE

3. Psychological Evaluation 8/03/2022 7 pages DOE

4. Bilingual Education Evaluation 8/11/2022 6 pages DOE

5. Bilingual Speech-Language Evaluation 8/15/2022 4 pages DOE

6. Occupational Therapy Evaluation 8/19/2022 4 pages DOE

PARENT EVIDENCE

A. Due Process Complaint 11/25/2022 5 pages

B. Individualized Education Program 9/22/2022 26 pages

C. Request for Independent Educational Evaluation 12/12/2022 2 pages

D. Emails from Parent to Committee on Preschool Special Education Administrators through 2/2023 12/2022 4 pages

E. Email from [REDACTED] 2/22/2023 1 page

F. Email from Parent to [REDACTED] 2/22/2023 1 page

G. Affidavit of [REDACTED] 4/15/2023 4 pages

IHO EXHIBITS

Footnotes

[1] The Hearing Officer Exhibits, if any, will be referred to as “(IHO (followed by a roman numeral))”; Parent/ Petitioners Exhibits, if any, will be referred to as “(P-(followed by a letter))”; and, District/Respondent Exhibits, if any, will be referred to as “(R-(followed by a number))”. References to the hearing transcript, if any, are denoted as (T (followed by a page number)).