New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Student’s Name: [REDACTED]

Date of Birth: [REDACTED]

District: [REDACTED]

Hearing Requested by: Parent

Record Close Date: October 1, 2023

Hearing Officer: Guljit Kaur Bains, Esq.

On January 11, 2023, the parent (the “Parent”) of [REDACTED] (“the student”) filed a due process complaint (“DPC”) under the Individuals with Disabilities Education Act (the “IDEA”) [20 U.S.C. section 1415(f)] and Section 4404(1) of the New York State Education Law against the New York City Department of Education (P- Ex. A). I was appointed as impartial hearing officer (“IHO”) on February 2, 2023. Lists of the documentary evidence submitted are appended to this Order.

BACKGROUND AND POSITIONS OF THE PARTIES

The student resides with his mother, (“the parent”) in Bronx, New York. He was [REDACTED] years old when the DPC was filed. (P- Ex. A- BB). He was classified as a student with a disability entitled to special education services by the Committee on Special Education (“CSE”). His classification and eligibility for special education support and services are not in dispute. DPC was filed by the parent for violations of the student’s right to a free appropriate public education (“FAPE.”) challenging the provision of FAPE for the 2020-2021 and 2021-2022 school years(“SYs”.) (P- Ex. A).

The parent asserts that the New York City Department of Education (“NYCDOE”):

1. Failed to properly evaluate the Student;

2. Failed to offer an appropriate educational placement for the years in question;

3. NYCDOE’s Individualized Education Programs (“IEPs”) for the SYs were inadequate to meet the student’s needs. The IEPs failed to include appropriate, meaningful and measurable goals which addressed the student’s unique needs. (P- Ex.’s A - BB) and (Parents closing brief)

The Parent seeks the cost of Independent Educational Evaluations (“IEE’s”), reimbursement for Tutoring Services, Compensatory Services including bank of hours, transportation to and from services and convene a duly constituted CSE to develop an appropriate IEP that offers an appropriate program that addresses all of the Student’s behavioral, academic and emotional needs. (P-Ex.’s A and BB) and (Parent’s closing brief)

The parent asserts that if the CSE cannot locate an appropriate program that offers the student the type of placement and services that he requires in order to make appropriately ambitious progress, then the CSE shall defer to the Central Based Support Team (“CBST”). (P-Ex.’s A) and (Parent’s closing brief) The Parent submitted documentary evidence (P-Ex’s. A-BB) which included two witness affidavits. The parent also submitted a written closing brief.

The DOE oppose compensatory services, reimbursement and the requested evaluations and ask that they be denied. The DOE argues that: (1) The record shows that the student has made progress and thus has not been damaged by any deprivation of FAPE during the school years, therefore not entitled to compensatory services; (2) Parent failed to meet the prerequisite showing that they disagreed with a DOE evaluation; (3) The record fails to establish and is devoid of evidence on the requested amount of compensatory education services, and how the requested services would provide an educational benefit to the Student; (4) The record and evidence does not support an award for specifically, compensatory executive functioning training, 1:1 ABA therapy, social skills training, and transition planning services. (DOE closing brief) The DOE argues that regarding compensatory executive functioning training, 1:1 ABA therapy, social skills training, and transition planning services: “Parent’s DPC addresses an alleged denial of FAPE for the 2020-2021 and 2021-2022 school years. The scope of the impartial hearing is limited to the issues raised in the DPC. 8 NYCRR 200.5 (j)(l)(ii), 20 U.S.C. 1415F)(3)(b), B.P. v. New York City Dep’t of Educ., 841 F. Supp. 2d 605, 611 (E.D.N.Y. 2012); R.C. ex rel. M.C. v. Byram Hills School Dist., No. 11 Civ. 3938, 2012 WL 5862736, p. 11 (S.D.N.Y. Nov. 2012). Any issues of allegations not contained within the four corners of this complaint are not to be considered pursuant to the application case law and regulations cited above. Similarly, any claims set forth within the DPC that were not addressed at hearing should not be considered as they are deemed abandoned. Application of the Dep’t of Educ., Appeal No. 09-037 at 14.”. (DOE closing Brief) The DOE did not submit evidence, did present witnesses, they cross examined the witness of the parent and did submit a written closing brief.

FINDINGS OF FACT AND DECISION

The IDEA provides that children with disabilities are entitled to a Free Appropriate Public Education ("FAPE") (20 U.S.C. § 1400 [d][1][A]. A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written Individualized Education Program (“IEP”) (34 C.F.R. § 300.13). 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). In order 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. v. Douglas County Sch. Dist. RE-1, No 15-827, 2017 WL 1066206, 137 S.Ct. 988, 69 IDELR 174 (U.S. Mar 22, 2017). School districts are required to provide the services set forth in a student’s IEP.

School districts have the burden of proof, including the burden of persuasion and burden of production, in IDEA 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 burden of production on the appropriateness of such placement (NYS Educ. Law § 4404(1)(c)). Since this case does not involve a unilateral placement/tuition reimbursement claim, the DOE has the burden of proof on all FAPE issues.

The Provision of a FAPE

The DOE did not present any testimony to support a finding that it offered the Student a FAPE for the SYs. The Supreme Court has found that “[a] reviewing court may fairly expect those authorities [school district staff] to be able 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. v. Douglas County School District, 137 S. Ct. at 1002 (2017). Documentary evidence, unsupported by any testimony, is not sufficient to establish that a school district offered a student a FAPE. There was no explanation for the CSE’s program and placement recommendations.

Based on the foregoing, I find that the DOE failed to meet its burden of proving that it provided the Student with a FAPE during the SYs. Compensatory Services The Parent requests compensatory education or compensatory services for the District’s failure to provide the Student with a FAPE for two school years. A hearing officer may award compensatory education relief in the form of supplemental special education or related services when there has been a denial of FAPE (see P. v. Newington Bd. of Educ., 546 F.3d 111, 123 [2d Cir. 2008]. Compensatory education may be awarded to students under the age of twenty-one (see Student X. v. New York City Dep't of Educ., 2008 WL 4890440, [E.D.N.Y. Oct. 30, 2008]. An award of compensatory services may be appropriate if a student has been denied appropriate services for an extended period of time and if such deprivation of instruction can be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation. An award of additional services should aim to place a student in the position he or she would have been in had the district complied with its obligations under the IDEA (P. v. Newington, 546 F.3d 111, 123 (2d Cir. 2008)). A compensatory education award can be crafted by either a “quantitative” or “qualitative” approach. Under the quantitative approach, the compensatory award is based on the amount of time that comprised the FAPE deprivation (in which a student is entitled to compensatory education for a period equal to the period of FAPE deprivation). Under the qualitative approach, the focus is on a student’s needs and is based on the specific educational deficits that resulted from the FAPE deprivation (with the compensatory award being the specific services needed to correct those deficits).

The Parent seeks:

1. Reimbursement of all monies paid for tutoring services;

2. At least 865 hours of compensatory 1:1 tutoring;

3. A bank of compensatory education and services in areas that include, but are not limited to, executive functioning training, 1:1 ABA therapy, social skills training, transition planning services to be provided outside of school hours. DOE to fund transportation costs to and from all sessions

4. A bank of compensatory education and services in the area of speech language therapy to be provided outside of school hours. Fund transportation costs to and from all sessions. At least 138 hours of compensatory speech therapy, in the alternative, a bank of at least 26 sessions (13 hours) of compensatory speech therapy;

5. A bank of compensatory education and services in the area of occupational therapy to be provided outside of school hours. Fund transportation costs to and from all sessions. A bank of at least 92 hours of compensatory OT; in the alternative a bank of at least 17 sessions (8.5 hours) of compensatory OT.

While the violations alleged in the due process complaint notice are serious and support a finding that the district committed a violation of the IDEA (see E. Lyme, 790 F.3d at 456 n.15; French, 476 Fed. App'x at 471; Somoza, 538 F.3d at 109 n.2, 113 n.6; Mrs. C., 916 F.2d at 75-76; Burr, 863 F.2d at 1078-79; Cosgrove, 175 F. Supp. 2d at 387). An outright default judgment awarding compensatory education, granting any and all of the relief requested without question, is a disfavored outcome even where the district's conduct in denying the student a FAPE and in failing to actively participate in the impartial hearing process is egregious (see Branham v. Govt. of the Dist. of Columbia, 427 F.3d 7, 11-12 [D.C. Cir. 2005]). An award ordered so blindly could ultimately do more harm than good for a student (see M.M. v. New York City Dep't of Educ., 2017 WL 1194685, at *8 [S.D.N.Y. Mar. 30, 2017] ["Common sense and experience teaches that services that may be valuable for, or even critical to, a child's educational achievement when provided in small to moderate amounts may become close to useless, or even burdensome, if provided in overwhelming quantity"]).

The Student experienced a FAPE deprivation for the 2020-2021, 2021-2022, school years and is entitled to compensatory services for that deprivation. A compensatory education award can be crafted by either a “quantitative” or “qualitative” approach. Under the quantitative approach, the compensatory award is based on the amount of time that comprised the FAPE deprivation (in which a student is entitled to compensatory education for a period equal to the period of FAPE deprivation). Under the qualitative approach, the focus is on a student’s needs and is based on the specific educational deficits that resulted from the FAPE deprivation (with the compensatory award being the specific services needed to correct those deficits).

Parent placed into evidence:

1. One-page unsigned letter from [REDACTED] doctors dated April 30, 2018 (P-Ex. B) which is in evidence and titled “letter from Dr. [REDACTED]”;

2. One-page signed letter from Dr. [REDACTED] dated November 15, 2023 (P-Ex. O)

3. One-page signed letter from Dr. [REDACTED] dated November 23, 2021 (P-Ex. Q);

4. Four IEP’s dated 5/18/20, 5/12/21, 10/7/21, and 12/23/21, (P- Ex.’s C, F, N, V) respectively;

5. Various progress reports, a psycho educational evaluation and update and classroom observation, report cards, [REDACTED] evaluation and two affidavits (Parent and director of [REDACTED]) and other documents (P-Ex’s A-BB)

The evidence and the record in this matter fails to establish NYCDOE’s IEPs for the SYs were inadequate to meet the Student’s needs. There is also no evidence that the IEPs failed to include appropriate, meaningful, and measurable goals which addressed the student’s unique needs.

The purpose of compensatory education is not to guarantee a particular result or level of student achievement, nor to penalize a school district for a deprivation of FAPE; instead, “an award of compensatory education should aim to place the student in the position he or she would have been in had the district complied with its obligations under the IDEA.” Application of a Student with a Disability, Appeal No. 19-026. Compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case. An award of compensatory education is a fact-specific inquiry, and compensatory education services should aim to place the student in the position he would have been in had the district complied with its obligations. See P. v. Newington, 546 F.3d 111, 123 (2d Cir. 2008). Once the DOE did not dispute the denial of FAPE, the hearing essentially became “an inquest as to appropriate relief.” SRO Appeal No. 16-033, p. 11.

The hearing record does not support an award of 865 hours of compensatory special education services (tutoring) nor the bank of compensatory hours Parent seeks. (P-Ex. A and BB) The student is entitled to any services not received during the SY’s that were listed in his IEP’s in evidence.

The Student made academic gains during the school years at issue. (P-Ex.’s G and W) The Student received individualized education services based upon his IEPs, progress reports, and report cards. (P-Ex.’s C, K, L, N, V, & W)

Parent’s witness [REDACTED], Director at the [REDACTED] Learning Center (“[REDACTED]”), testified with respect to the hours of tutoring this student would need. (P-Ex. AA) Ms. [REDACTED] reviewed but did not administer any evaluations for Student. (Transcript 65) She testified in her affidavit that “her duties as a Director at [REDACTED] include, but are not limited to, conducting student evaluations. I have been personally evaluating students at [REDACTED] since November 2013. I have contact with teachers and have participated in IEP meetings at a Parent’s request regarding students who are currently enrolled at [REDACTED]. I provide school staff with information regarding what a student is working on at [REDACTED] and the progress that he or she made at [REDACTED]. In general, [REDACTED] requests a student’s IEP prior to conducting an academic evaluation and the evaluator reviews that document, as well as any other documentation provided by the parent.” On cross examination she testified she had not administered the evaluation to this student. There was no testimony with respect to the IEP’s conducted and she could not recall which IEP she reviewed but she believed she reviewed one. She did not know or recall if he had prior testing at [REDACTED]. In her affidavit she states that “she speaks to the teachers of the students”, however upon cross examination when asked if she specifically spoke to this student’s teachers, she said she had not. (Transcript 65-67)

Ms. [REDACTED] was asked on cross examination, “what training is required to evaluate students at [REDACTED]?”, she answered that “there's standard training provided, you know, throughout the company that just basically covers how to administer the test to students and then how to score those results after and explain them to parents.” (Transcript 65) She testified on cross that “evaluators don't determine the hourly tutoring recommendation personally; it's based upon a computer algorithm. The algorithm that is utilized is based on the test results.”

The district argues in their brief that “to create a recommendation based upon a neurotypical student is not only inappropriate, but also inadequate. IEPs are developed based upon a Student’s functional level and must be reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances." Endrew F., 580 U.S. at 403. In this case the IEPs did just that and Parent’s request for 850 compensatory tutoring hours is not based on the unique needs of the child or his abilities. [REDACTED] utilizes a uniform approach to evaluate student’s without actual clinicians trained in administering proper evaluative testing, a computer algorithm to develop “programs,” without considering the specific child assessed, and requests public funding to tutor special education students despite evaluating and recommending a program for them as if they are typically developing students.”

Additionally, there was no testimony or recommendation that a compensatory award of the above additional services would place the student in the position he or she would have been in had the district complied with its obligations under the IDEA. There was no testimony as to how the incredibly large number of tutoring and compensatory hours would be implemented or allocated. Again, the student had been making progress and the record does not support any deficiencies in the services provided to this student. Finally there is no evaluation or any testimony from a qualified professional asserting any deficiencies in the services implemented pursuant to the IEPs.

I will not usurp the DOE’s responsibility to complete an appropriate IEP and placement for the student. The CSE is to review all of the evaluations. Therefore, I will order a CSE meeting within 20 days of receipt of all the evaluations of the child and that they consider all the available information, and to prepare a new individualized education program that comprehensively describes the student and includes appropriate related services and goals.

This IHO further cannot usurp the DOE’s role and determine what services are appropriate for this student. The witness and documentary evidence do not establish or justify the reimbursement or a bank of hours of any services outside what was recommended in the IEPs.

Using the quantitative analysis, based on the testimony and reports, and the IEPs in this hearing record, I find that the parents should receive compensatory services or a bank of hours for all services recommended in the IEP’s that were not received by this student due to the school’s failure to implement the services.

Based on the above, reimbursement of all costs incurred for private services as recommended by the four IEPs and not provided by the District is granted. Compensatory services pursuant to the IEPs which were not provided to student for the SY’s is also granted.

The IEE Request

The Parent seeks that the NYCDOE fund the cost of the following Independent Educational Evaluations (“IEE”) to be conducted by the Parent’s chosen evaluators at their normal and customary rates: a. A Neuropsychological Evaluation to be conducted at the provider’s normal and customary rates not to exceed $6,000; b. A speech language evaluation to be conducted by a New York State licensed speech pathologist to be conducted at the provider’s normal and customary rates not to exceed $2,100; c. An OT evaluation to be conducted by a New York State licensed occupational therapist to be conducted at the provider’s normal and customary rates not to exceed $2,000; d. An Assistive Technology evaluation to be conducted by a New York State licensed speech pathologist to be conducted at the provider’s normal and customary rates not to exceed $2,500; e. A feeding evaluation to be conducted by a New York State licensed speech pathologist to be conducted at the provider’s normal and customary rates not to exceed $2,200; f. An ABA assessment, to be conducted by a board-certified behavior analyst or licensed behavior analyst to be conducted at the provider’s normal and customary rates not to exceed $4,125; and g. An FBA at a market rate not to exceed $4,125 and a subsequent BIP at a market rate not to exceed $1,375 to be conducted by a board-certified behavior analyst or licensed behavior analyst.

An independent educational evaluation is defined under the IDEA as “an evaluation conducted by a qualified examiner who is not employed by the public agency responsible for the education of the child in question.” 34 CFR 300.502(a)(3)(i). Under Schaffer v. Weast, 546 U.S. 49 (2005), the Supreme Court held that the party requesting a hearing under the Individuals with Disabilities Education Act (“IDEA”) must bear the burden of proof. In New York, the Legislature enacted an amendment to the Education Law to ensure that in cases brought by parents, the school district will bear the burden of proving that it provided a free appropriate public education. N.Y. Educ. L. § 4404(1)(c).

The Regulations allow an impartial hearing officer to order independent evaluations as part of a hearing to inform the record; “Requests for evaluations by hearing officers. If a hearing officer requests an independent educational evaluation as part of a hearing, the cost of the evaluation must be at public expense.” 8 N.Y.C.R.R. § 200.5(g)(2). The Part 200 Regulations specifically describe and provide for independent educational evaluations (IEE): (1) Requests by parents. 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. 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.

(i) If requested by the parent, the school district shall provide to parents, information about where an independent educational evaluation may be obtained, and the school district’s criteria applicable for independent educational evaluations, as described in subparagraph (ii) of this section.

(ii) The criteria under which the evaluation is obtained, including the location of the evaluation and the qualifications of the examiner, shall be the same as the criteria which the school district uses when it initiates an evaluation, to the extent those criteria are consistent with the parent’s right to an independent educational evaluation. A school district may not impose additional conditions or timelines related to obtaining an independent educational evaluation at public expense.

(iii) If a parent requests an independent educational evaluation at public expense, the school district may ask for the parent’s reason why he or she objects to the public evaluation.

(a) The explanation by the parent in subparagraph (iii) of this paragraph may not be required and the school district may not unreasonably delay either providing the independent educational evaluation at public expense or filing a due process complaint notice to request a hearing to defend the public evaluation.

(iv) If a parent requests an independent educational evaluation at public expense, 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 N.Y.C.R.R. § 200.5(g); and see 34 C.F.R. § 300.502; 20 U.S. C. § 1415 (b)(1) and (d)(2)(A). The Supreme Court pointed out the importance of the IEE to parental participation, noting that parents have the right to review all records that the school possesses in relation to their child. [20 U.S.C.] § 1415 (b)(1). They also have the right to an “independent educational evaluation of the[ir] child.” Ibid. The regulations clarify this entitlement by providing that a “parent has the right to an independent educational evaluation at public expense if the parent disagrees with an evaluation obtained by the public agency.” 34 CFR § 300.502(b)(1) (2005). IDEA thus ensures parents access to an expert who can evaluate all the materials that the school must make available, and who can give an independent opinion. They 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. Shaffer v. Weast, 546 U.S. 49, 60-61 (2005).

For a school district to avoid paying for a parent’s independent educational evaluation, it must (1) file for a due process hearing without unnecessary delay, and either (2) show that its evaluation is appropriate, or (3) show “that the evaluation obtained by the parent did not meet school criteria[.]” 8 N.Y.C.C.R. § 200.5(g)(1)(iv) [emphasis added]. The regulations are very clear that the school district must file a due process hearing without unnecessary delay, and then at that point, must then show that its evaluation is appropriate or that the parent’s evaluation obtained did not meet school criteria. The regulations indicate that, in fact, the parent can obtain the requested independent evaluations without undue delay. While the school district may “ask for the parent’s reason why he or she objects to the public evaluation” but such explanation “may not be required and the school district may not unreasonably delay either providing the independent educational evaluation at public expense or filing a due process complaint notice to request a hearing to defend the public evaluation [.] 8 N.Y.C.R.R. § 200.5(g)(1)(iii). Furthermore, the parents need not express their disagreement to the school district prior to obtaining the IEE. See, e.g. Hudson v. Wilson, 828 F.2d 1059 (4th Cir. 1987); Bd. Of Educ. Of Murphysboro Cmty. Unit Sch. Dist. V. Ill. St. Bd of Educ., 41 F. 3d 1162 (7th Cir. 1994); Raymond S. v. Ramirez, 918 F. Supp. 1280 (N.D. Iowa 1996); Mullen v. Dist. of Columbia, 89-2069-OG, 16 EHLR 792 (D.D.C. 1990); Hiller v. Bd. Of Educ. Of Brunswick Cent. Sch. Dist., 687 F. Supp. 735 (N.D.N.Y. 1988); P.R. v. Woodmore Local Sch. Dist., 256 Fed. Appx. 751 (6th Cir. 2007) affirming 481 F. Supp. 2d 860 (N.D. Ohio 2007). Letter to Anonymous, 17 IDELR 1113 (OSEP 1991). In Warren G. v. Cumberland School District, the Third Circuit held that “[t]o accept the District’s argument [that the parent’s failure to express disagreement with the District’s evaluations prior to obtaining their own forecloses their right to reimbursement] would render the regulation pointless because the object of parent’s obtaining their own evaluation is to determine whether grounds exist to challenge the District’s. Warren G. v. Cumberland School District, 190 F.3d 80, 87 (3rd Cir. 1999). “Federal law provides no specific authorization for imposing any preconditions on the exercise of the parent’s right to obtain an IEE at public expense.” Letter to Kirby, 213 IDELR 233 (OSERS, 1989). Under the Part 200 regulations, “[a] school district may not impose additional conditions or timelines related to obtaining an independent educational evaluation at public expense [emphasis added]” 8 N.Y.C.R.R. § 200.5(g)(1)(ii). Similarly, under the federal regulations: (1) If an independent educational evaluation is at public expense, the criteria under which the evaluation is obtained, including the location of the evaluation and the qualifications of the examiner, must be the same as the criteria that the public agency uses when it initiates an evaluation, to the extent those criteria are consistent with the parent’s right to an independent educational evaluation.

(2) Except for the criteria described in paragraph (e)(1) of this section, a public agency may not impose conditions or timelines related to obtaining an independent educational evaluation at public expense [emphasis added]. 34 C.F.R. § 300.502(e).

The school district has the burden of proving that the cost of the parent’s evaluation is unreasonable. Schaffer v. Weast, supra. This would be an imposition of additional conditions on the parent’s right to seek an independent evaluation.

Recently the Second Circuit in D.S. v. Trumbull Bd. of Educ., 975 F.3d 152, 162-163 (2d Cir. 2020) specifically defined “[t]he IDEA's mandatory evaluation process is set forth in Section 1414 of the Act” as targeting “two types of evaluations: initial evaluations and reevaluations.” These evaluations, it found, had to be "conducted in accordance with" certain procedures outlined in the statute. See id. § 1414(a)(2)(A), (b) – (c). Those procedures prescribe mandatory evaluation conduct, including that the school (1) use "a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information," id. § 1414(b)(2)(A); (2) "not use any single measure or assessment as the sole criterion for ... determining an appropriate educational program for the child," id. § 1414(b)(2)(B); (3) "use technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors," id. § 1414(b)(2)(C); and (4) "assess[ ] [the child] in all areas of suspected disability," id. § 1414(b)(3)(B). The statutory language is clear; an evaluation means a comprehensive assessment of the child that follows the mandatory procedures outlined in Section 1414 of the IDEA, including assessing the child in all areas of their disability… The regulations establish that a parent's right to an IEE at public expense is triggered when the parent "disagrees with an evaluation obtained by the public agency." Id. § 300.502(b)(1) (emphasis added). And the regulations provide that "[e]valuation means procedures used in accordance with §§ 300.304 through 300.311 to determine whether a child has a disability and the nature and extent of the special education and related services that the child needs." Id. § 300.15. Sections 300.304 through 300.11 of the regulations, in turn, parrot and expand upon the mandatory evaluation conduct and procedures outlined in Section 1414 of the IDEA. See, e.g., id. § 300.304; see also J.A. 789 (hearing officer's conclusion of law that "[a]n evaluation under 34 C.F.R. § 300.304 refers to the processes and procedures used to gather relevant functional, developmental, and academic information about the child, including information provided by the parent, that may assist in determining ... [t]he content of the child's IEP, which includes the use of technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors" (internal quotation marks omitted)). Thus, both the statutory and regulatory language confirms that an "evaluation" means an "initial evaluation" or a "reevaluation." D.S. v. Trumbull Bd. of Educ., 975 F.3d 152, 162-163 (2d Cir. 2020). In Trumbull, the Court highlighted the district’s responsibility to conduct sufficiently comprehensive evaluations of the Student using a variety of evaluative and assessment tools. It also highlighted that if the district failed to conduct sufficiently comprehensive evaluations of the Student, including failing to conduct particular assessments, the Parent then has a right to obtain an independent evaluation at public expense. If a parent disagrees with an evaluation and requests an IEE at public expense, the regulations do not circumscribe the scope of that IEE. See34 C.F.R. § 300.502(b)(1). 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. D.S. v. Trumbull Bd. of Educ., 975 F.3d 152, 165 (2d Cir. 2020).

The court in D.S. v. Trumbull Bd. of Educ. was particularly concerned that a parent would use a limited assessment tool, defined in that particular case as a functional behavioral assessment, to preempt the district’s ability to conduct a comprehensive initial or re-evaluation, especially in a case such as the one before the Court where the district was poised to conduct a presumably comprehensive re-evaluation, but that is not the case in the instant matter. The District has had multiple opportunities to evaluate this child appropriately and has failed to do so.

The Parent is entitled to IEEs in this matter, based upon the clear regulatory and legal decisions on this matter, including D.S. v. Trumbull Bd. of Educ. To do otherwise, would remove the protective nature of providing parents the ability to ensure timely comprehensive evaluations of their child. The regulations only specify that the Parent must make their challenge to the District’s evaluation known, it is then for the District to respond to the Parent’s challenge by either demonstrating that it had sufficiently evaluated the student or funding the evaluations the Parents requests.

In light of the above, I find that the record establishes the appropriateness of the Department of Education funding the requested Independent Educational Evaluations. The Parent’s request is therefore granted.

ORDER

IT IS HEREBY ORDERED that the New York City Department of Education:

1. Reimburse the Parent for costs incurred for services provided to the student by the parent for the SY’s to the extent that reimbursement is for services recommended in the IEPs that were not provided. Proof of all hours of service not provided to the child to be submitted. Services to be paid at market rate to be determined by the DOE’s implementation unit based upon the lowest rates paid to such provider or comparable rates to comparable providers for the same or similar students;

2. Provide compensatory services (if any) that the parent has not been able to provide privately for the SY’s to the extent that it is for services recommended in the IEPs. Proof of all hours of service not provided to the child to be submitted; and it is further

ORDERED, that, the New York City Department of Education is directed to fund: A Neuropsychological Evaluation; 2. A speech language evaluation; 3. An OT evaluation; 4. An Assistive Technology evaluation; 5. A feeding evaluation; 6. An ABA assessment; and 7. functional behavioral assessment(“ FBA”) and a subsequent BIP ; at reasonable market rates; and it is further

ORDERED, the New York City Department of Education is to have the CSE conduct all appropriate evaluations and reconvene within 20 days of receipt of said evaluations; they must consider all of the evaluations which the Student has had, and consider all the available information, and address the Student’s behavioral, academic and emotional needs.

Date: October 11, 2023

Guljit Kaur Bains, Esq. 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.

For the Student:

[REDACTED] PLLC

By [REDACTED] ESQ.

[REDACTED], PARENT [REDACTED] [REDACTED]

For the Department of Education:

[REDACTED] ESQ., DOE REPRESENTATIVE

DOCUMENTS ENTERED INTO THE RECORD

PARENTS EXHIBITS

A. Due Process Complaint 26 pages 3.2.23

B. Letter from Dr. [REDACTED] 1 page 4.30.18

C. Individualized Education Program 26 pages 5.18.20

D. 5.7.21 District 75 Feeding Team Video Conference Consultation 4 pages

E. 5.12.21 Occupational and Physical Therapy Clinical Guide 2 pages

F. Individualized Education Program 27 pages 5.12.21

G. 2020-2021 Final Report Card 1 page June 2021

H. Social History Update 2 pages Undated

I. 9.29.21 Classroom Observation (1 page)

J. Psychoeducational Evaluation 4 pages 9.24.21

K. Academic Student Progress Report 3 pages 10.1.21

L. Speech Language Student Progress Report 3 pages 10.7.21

M. 10.7.21 Occupational and Physical Therapy Clinical Guide 2 pages

N. Individualized Education Program 26 pages 10.7.21

O. Letter from Dr. [REDACTED] 1 page 11.15.21

P. Psychoeducational Update 3 pages 11.18.21

Q. Letter from Dr. [REDACTED] 1 page 11.23.21

R. 12.19.21 Consideration of a Student’s Need for Positive Behavior Supports, FBA, or a BIP 3 pages

S. 12.23.21 Occupational and Physical Therapy Clinical Guide 2 pages

T. 12.23.21 New York State Alternate Assessment Participation Decision-Making Checklist 1 page

U. Speech Language Student Progress Report 3 pages 12.23.21

V. Individualized Education Program 28 pages 12.23.21

W. 2021-2022 Final Report Card 2 pages June 2022

X. Various 2020-2021 & 2021-2022 Related Service Records 32 pages

Y. [REDACTED] Learning Center Evaluation Report 5 pages 4.7.22

Z. Various [REDACTED] Learning Center Financial Record 2 pages

AA. Affidavit of [REDACTED] 10 pages 3.31.23

BB. Affidavit of Constance Rogers 46 pages 4.3.23

DISTRICT EXHIBITS

None