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CASE NUMBER: 598623 - NYC: 247608
FINDINGS OF FACT AND DECISION
Student’s Name 1: [REDACTED] (“Student”)
Date of Birth: [REDACTED]
School District: NYC Department of Education (“District”)
Hearing Requested by: [REDACTED] (“Parent(s)”) AND District
Request Date/Date Complaint Filed by Parent: 04/20/2023 (Case No. 247608)
Request Date/Date Complaint Filed by District: 05/09/2023 (Case No. 248198)
Date(s) of Hearing: 7/14/2023
7/19/2023
7/24/2023
7/27/2023
Actual Record Closed Date: 09/01/2023
Date of Decision: 09/01/2023
Time Sensitive: YES
Hearing Officer: Olivia Sohmer, Esq.
1 Personally identifiable information is attached as Appendix B, “Redaction Identification Page,” to this decision and must be removed prior to public distribution.
INTRODUCTION
Student is a child of elementary school age whose eligibility for special education supports and services under the Individuals with Disabilities Education Act (IDEA) is not in dispute. This Findings of Fact and Decision (“FOFD”) addresses a dispute between the “Parent” and the New York City Department of Education (“the DOE” or “the District”) over the appropriateness of the most recent evaluation of Student. Each party filed its own demand for a due process hearing: Parent seeks certain independent assessments while the District seeks to defend the assessments that were conducted.
For the reasons that follow, certain assessments are ordered to be funded at public expense, and the remaining claims in the consolidated petitions are dismissed.
PROCEDURAL HISTORY
On April 20, 2023, a due process complaint (“DPC”) (No. 247608) was filed against the DOE by the Attorney for the Parent, on behalf of the Parent’s child (“Student”), pursuant to the Individuals with Disabilities Education Act (“IDEA,” or the “Act”) [20 U.S.C. Section 1415(f)] and Section 4404(1) of the New York State Education Law. In the DPC, Parent seeks Independent Educational Evaluations to be funded by the District. In particular, the Parent requests funding for a bilingual neuropsychological assessment, a bilingual speech-language assessment, and an occupational therapy assessment with bilingual translation.[2]
On April 21, 2023, I was appointed impartial hearing officer (“IHO”) for this case.
On May 9, 2023, the District filed a DPC (No. 248198) against the Parent, requesting a hearing for the District to demonstrate the appropriateness of the evaluation that had been conducted by the DOE.
On May 11, 2023, an Order was issued consolidating the two DPCs (Ex. 3).
The Resolution period ended on May 20, 2023, and an initial prehearing conference (“PHC”) with the representatives of the parties was held on May 31, 2023.
On July 14, 2023, the matter proceeded to a hearing, which was conducted on a virtual platform. Parent and an interpreter were present for the testimony of all witnesses presented by the Parent, but Parent’s presence was waived for the District’s case, and interpretation of nontestimonial proceedings was waived by Parent’s counsel (Tr: 20, 189-190, 200-201, 204, 272, 349350, 357, 360-361, 382, 390).
The District presented documentary evidence and the live testimony of a DOE School Psychologist (Tr: 41-133) concerning the three specifically challenged assessments and other reports that were before the Committee on Special Education at its meeting on May 31, 2023. The Parent presented two prior IEPs, reports from the evaluation of Student conducted in 2019, and the testimony of a Bilingual Speech-Language Pathologist (Ex. HH; Tr: 217-240), a Neuropsychologist (Ex. Tr: 242-270), and an Occupational Therapist (Ex. GG; Tr: 358-366), for whose independent evaluations the Parent seeks funding.[3] The District waived cross-examination concerning the rates for the additional requested assessments (Ex. FF; Tr: 273).[4] The Parent herself also testified, after counsel obtained a translation of her affidavit that Parent understood and could adopt under oath (Tr: 373-374, 393-416).
Parent proffered various evidence relating to a prior due process complaint and subsequent federal litigation. The District’s objection to this evidence was litigated extensively pursuant to Parent’s written “Omnibus Motion” filed during the hearing to request reconsideration of my initial evidentiary ruling (IHO Ex. iii, iv; Tr: 137- 152, 173-183, 324-329, 342-343). Ultimately, I ruled that documents from prior litigation were not admitted, with the sole exception of a Stipulation between the District and Parent’s Counsel that laid out the District’s obligation to evaluate the Student and the Parent’s reservation of the right to challenge such evaluations, giving rise to the present DPCs (Ex. C; Tr: 353-356).[5]
Parent’s Counsel requested an opportunity to submit a written summation. The DOE Agency Attorney provided a written copy on July 27, 2023 of the summation he had intended to deliver orally (IHO Ex. vi), Parent’s written Closing Statement was submitted on August 7, 2023 (IHO Ex. vii), and the District did not avail itself of the offer to submit any future response to Parent’s summation.
JURISDICTION
This due process hearing was held and the decision is rendered pursuant to the Individuals with Disabilities Education Act (“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 § 4404 et seq., and its implementing regulations, 8 NYCRR Part § 200.
LEGAL FRAMEWORK
According to the United States Court of Appeals for the Second Circuit, “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” (D.S. by M.S. and R.S. v. Trumbull Bd. of Educ., 975 F.3d 152, 163 (2d Cir. 2020), (emphasis in original). Those mandatory procedures include using “a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information” (20 U.S.C. § 1414[b][2][A]); using “technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors” (20 U.S.C. § 1414[b][2][C]); and assessing the child “in all areas of suspected disability” (20 U.S.C. § 1414[b][3][B]).
Informal guidance from the United States Department of Education's 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 also Letter to Carroll, 68 IDELR 279 [OSEP 2016]).
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). The IDEA and State and federal regulations allow a parent to request an IEE at public expense if the parent disagrees with a school district’s evaluation. 20 U.S.C. § 1415 (b)(1); 34 C.F.R. § 300.502(b); 8 NYCRR § 200.5(g)(1); D.S. by M.S. and R.S. v. Trumbull Bd. of Educ., 975 F.3d 152, 158 (2d Cir. 2020) (“[a] parent is entitled to a publicly funded IEE if the parent disagrees with an evaluation obtained by the public agency”) (internal quotation marks and citations omitted). In Shaffer v. Weast, the Supreme Court explained the role an IEE plays in parental participation and the IDEA’s regulatory scheme as follows: “[an IEE] 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.” 546 U.S. 49, 60-61 (2005).
As the court stated in D.S. v. Trumbull Bd. of Educ., “[n]othing 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” (id., 975 F.3d at 165).
Once a parent disagrees with a school district’s evaluation and requests an IEE at public expense, the school district must, without unnecessary delay, either (1) ensure that an IEE is provided at public expense; or (2) initiate an impartial hearing to establish that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria. 34 CFR § 300.502(b)(2)(i)-(ii); 8 NYCRR § 200.5(g)(1)(iv); D.S. by M.S. and R.S., 975 F.3d at 158.
In IDEA due process hearings in New York State, school districts have the burden of proof, including the burden of persuasion and burden of production, except on issues of unilateral placement not applicable in this case. NYS Educ. Law § 4404(1)(c). The standard required is a preponderance of the evidence. 20 U.S.C. §1415(i)(2)(C)(iii); see also Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 121 et passim (2d Cir. 1998). Accordingly, the District bears the burden of showing that “its evaluation is appropriate or that the evaluation obtained by the parent [or sought to be obtained] does not meet the school district criteria” (D.S. by M.S. and R.S., 975 F.3d at 158, 168 [2nd Cir. 2020]; Application of a Student With a Disability, Appeal No. 19-101.
The appropriateness of an evaluation can be shown where a qualified “evaluator employed 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 assisted in determining, among other things, the content of the student’s IEP.” Application of the Dep’t of Educ., Appeal No. 09-121. Evaluations must also be sufficiently comprehensive to identify all of the student’s special education needs. Id. See also, 20 U.S.C. § 1414(b)(2)(A); 34 C.F.R. § 300.304(b)(1)(ii), § 300.304(c)(6); 8 NYCRR § 200.4(b)(6)(ix).
A CSE is obligated to ensure that it has sufficient evaluative and documentary material upon which to formulate its recommendations. 34 C.F.R. § 300.324(a); 8 N.Y.C.R.R. § 200.4(d)(2). This obligation is not contingent upon a specific request from the parents. As part of any re-evaluation, the IEP team is required to “review existing evaluation data” and “on the basis of that review, and input from the child’s parents, identify what additional data, if any, are needed” to determine the child’s eligibility for services, present levels of performance, and whether any changes to the Student’s IEP are necessary. Ex. 20 U.S.C. § 1414(c)(1), (d)(B)(i); 34 C.F.R. § 300.305; 8 N.Y.C.R.R. § 200.4(b)(5)(i), (ii).
FINDINGS OF FACT AND ANALYSIS
Student has been known to the DOE as a student with a disability for some years, with a classification of Autism that was diagnosed in Early Intervention (Ex. 7-2) and appears on Student’s IEP at least as early as May 4, 2020 (Ex. G-1). Student is also recognized by the DOE as a bilingual “student with limited English proficiency” and – until the most recent IEP developed based upon the challenged evaluations – Student’s IEPs have noted that, because of this limited proficiency, Student “need[s] a special education service to address her language needs as they relate to the IEP” (Exs. G-12 [5/4/2020 IEP]; F-9 [6/2/2022 IEP]).[6]
In settlement of prior litigation, the Parent and the District entered an agreement on June 24, 2021 pursuant to which Student was to be re-evaluated and the results of such re-evaluation considered in the development of an IEP for the 2023-2024 school year. By agreement of the parties, this evaluation was to include “a psychoeducational evaluation, occupational therapy evaluation, physical therapy evaluation and a bilingual speech language therapy evaluation, as well as a social history, as well as any other evaluations deemed necessary by CSE” (Ex. C-12 ¶21). Parent’s understanding was that the purpose of this provision was to give the DOE the opportunity to conduct an appropriate reevaluation of Student after Student had received two years of various services including Applied Behavioral Analysis services (“ABA”) and bilingual speech and language therapy (Ex. II-002 ¶ 7).
On March 6, 2023, the DOE conducted a psychoeducational evaluation (Ex. 4), a bilingual speech/language evaluation (Ex. 5), and an Occupational Therapy (“OT”) evaluation (Ex. 6). A social history update was also obtained on the same day, by means of an interview of the Parent (Ex. 7). The reports of the psychoeducational and OT evaluations were dated the same day the evaluations were conducted; the speech-language evaluation was dated March 14, 2023. Even read together, the reports do not indicate the order in which the evaluations were done, and only the psychoeducational states that the assessment session lasted for 3 hours. The reports of the SpeechLanguage and OT evaluations do not indicate how much time was spent with the Student for either of those assessments.
On April 10, 2023, Parent sent the DOE a letter disagreeing with the District’s evaluations of the Student (Ex. W), which Parent said were not sufficient to allow an accurate determination of Student’s needs, especially compared to Student’s prior records. Parent requested a bilingual neuropsychological assessment to be conducted by a specific provider (“Neuropsychologist”), and a bilingual speech-language assessment and occupational therapy assessment with bilingual translation from a Provider Agency (Ex. W).
On April 14, 2023, the District sent Parent a Prior Written Notice/Notice of Recommendation (“PWN”) in which the DOE “refus[ed] to conduct an additional reevaluation.”
answered “Not Applicable” indicating that Student is still recognized as having limited English proficiency.
(Ex. 8). On April 17, 2023, Parent’s Counsel sent email to the District pointing out that Parent was requesting IEEs (Ex. W-3). There is no evidence of any subsequent response by the District, and on April 20, 2023, Parent filed a due process complaint (Ex. A). As discussed above, the District filed its own due process complaint on May 9, 2023.
On May 31, 2023, the Committee on Special Education (“CSE”) convened and developed an IEP for the Student (Ex. 16). “School Psychologist” served as the District Representative at the CSE meeting. He has served in that role, devising IEPs for the DOE, since 2016 (Tr: 43-44). The School Psychologist considered the reports of the three March 6 evaluations (Ex. 4, 5, 6), a Functional Behavioral Assessment and Corresponding Behavior Intervention Plan (“FBA/BIP”) prepared by Student’s Attending School (Ex. 15), classroom progress and goals reports (Ex. 9, 10), OT progress and goals reports (Ex. 13, 14),[7] and a Speech progress report (Ex. 11). I find that the Social History update was also before the CSE. It is not listed among the documents reviewed, but there is a reference to it in the IEP (Ex. 16-1, 16-11).
The School Psychologist is qualified to conduct psychoeducational evaluations, but did not conduct the evaluation in this case, and did not review it until the day before the meeting (Tr: 44, 50). The assessment methods used in the psychoeducational evaluation are commonly used for such assessments, and they assessed Student’s abilities in various areas in comparison with other students her age (Tr: 54-56). In the opinion of the School Psychologist, the psychoeducational evaluation was appropriate and sufficient because it “assessed all the areas that [the CSE] would typically look at for academic functioning,” it showed that Student “had some areas of relative strength and areas of more significant weakness,” and it gave description of behaviors that could interfere “with maybe the student performing optimally to their full potential, such as some of the hyperactive behaviors or the frustration” (Tr: 78-79). The School psychologist is not qualified to conduct all the various evaluations that were before the CSE, but he is qualified professionally to read, interpret, and utilize them to determine special education services (Tr: 80-84).
In the opinion of School Psychologist, the testing that was done was sufficient for the purpose of conducting an IEP meeting. There were no other tests that he wanted to see (Tr: 78, 94,
101-103). In his opinion, the CSE had sufficient information to describe Student’s present levels of performance and management needs, and to justify the recommendation that it made in the IEP (Tr: 105, 132).
The DOE’s Psychoeducational Evaluation
On March 6, 2023, the DOE conducted a psychoeducational assessment. Student “had significant challenges” with “sustaining attention” and maintaining her energy” during the threehour assessment. Many questions had to be asked “multiple times;” Student “would attempt to walk around or engage in off-topic conversations;” Student “would also grab and put objects … into her mouth” including hand sanitizer; and she “tended to get frustrated and refrain from engaging in certain cognitive or academic-related tasks.” Based on this behavior, the examiner concluded that the “assessment needs to be interpreted with caution” (Ex. 4-2, 4-4). The assessment reported that Student is performing in the “Extremely Low” range in reasoning, language, visuospatial, memory, and processing speed abilities, in the “Very Low Range in mathematical applied problems and calculations, in the Low range for reading passage comprehension, and in the Average range for letter-word identification and spelling (Ex. 4-2 to 44).
The psychoeducational report notes that Student is receiving special education services under the classification of Autism and refers the reader to the social history (Ex. 7) for educational, behavior, and medical background. However, the psychoeducational assessment itself was based only on a Student interview and testing of the Student (Ex. 4-1) and the report was completed on March 6, 2023, the same day as testing (Ex. 4-4). The psychoeducational report provides no information to assist the CSE in understanding the reasons for Student’s specific deficits and makes no recommendations for measurable goals or methods to address them. I also note that the evaluator’s observation that Student “had some difficulty opening up and expressing her thoughts and opinions during the student interview” (4-2) may well have been a function of a speechlanguage disability, but this was not mentioned in the report.
Since all the assessments and the social history interview of the Parent occurred on the same day, there is no indication that the person conducting the psychoeducational evaluation had any knowledge that Student sees a psychiatrist “consistently” or that Student was receiving “five hours per day of 1:1, individualized instruction utilizing ABA and 1 hour of a 2:1 ratio during instructional lunch and leisure skills for a total of six hours per day,” as is noted in the social history update report that was not completed until March 16, 2023 (Ex. 7-2). Without mentioning that Student receives ABA therapy to support her learning, the DOE psychoeducational stated that testing was limited by Student’s behavior and that the results of the assessment therefore had to be “interpreted with caution” (Ex. 4-2, 4-4).
School Psychologist testified that, while a psychoeducational assessment looks primarily at cognitive and academic skills, a neuropsychological evaluation would include more elaborate testing of attention and executive functioning, and might also assess autism, social-emotional functioning, and internalized and externalized behaviors (Tr: 103-104). School Psychologist did not believe such an assessment was necessary in this case, because these areas were all “established [in] the student’s longstanding diagnosis” of autism (Tr: 119). A neuropsychological evaluation would be appropriate if Student was presenting behaviors that were “anomalous” to how the Student was presenting “previously” (Tr: 119). I find, however, that there is no reference in the DOE’s evaluations to Student’s prior behaviors or performance, and no comparison of the results of the present assessment to prior assessments. There is no reference to whether the services that have been provided to Student for the past two years have been of any benefit, and therefore no basis for a CSE looking at the evaluation to determine whether the services should continue or change.
The District takes the position that the DOE assessments were appropriate because they provided sufficient information to justify the recommendations in the IEP. But the issue at this hearing is not whether the IEP was based on the information before it. The issue is whether the evaluation of the Student was comprehensive, assessing Student in all areas of known or suspected disability. I find that the psychoeducational evaluation did not address significant areas of Student’s known areas of disability, let alone leave room for the discernment of additional areas of suspected disability.
At her own financial risk, Parent obtained a bilingual neuropsychological evaluation, which was completed on July 3, 2023 (Ex H; see Tr: 156-158). Parent’s independent evaluator (“Neuropsychologist”) testified at the hearing. As the Neuropsychologist explained, a psychoeducational evaluation simply reports scores, indicating that a Student has a delay, but describes nothing about the underlying nature of the problem causing such delay (Tr: 263-264).
The Parent has established, without any contradictory evidence from the DOE, that the rate charged by the Neuropsychologist for the evaluation obtained by the Parent is reasonable and commensurate with market rates (Exs. H, DD).
The Speech-Language Evaluation
The DOE’s Speech-Language Evaluation was conducted on March 6, 2023, the same date as the other evaluations (Ex. 4-1). The DOE’s evaluator holds a Certificate of Clinical Competence in Speech-Language Pathology (CCC-SLP) and has been so licensed since 2001. She does not hold a bilingual extension (Ex. CC). Parent was present and provided information to the evaluator concerning Student’s bilingualism and use of different languages in the home (5-2, 5-4, 5-8). The evaluator chose to have Parent leave the room during the actual testing. Evaluative tests were conducted in both Spanish and English. The DOE evaluator reported that Student did not perform well when tested in Spanish (5-2), that Student was observed to initiate more in English even when asked questions in Spanish (5-3), and that when Student was performing poorly during testing, “translating tasks to Spanish did not appear to aid in her performance” (5-4, 5-5).
Testing by a Speech-Language therapist who is herself bilingual is not the same as bilingual speech-language evaluation by a pathologist with a Bilingual Extension certification (Tr: 239). The Parent’s Bilingual SLP explained that, in a bilingual evaluation, it is important to determine if the student has a language disorder, a language difference, or a language gap in order to determine appropriate services for the student (Ex. HH-2 ¶ 6).
Parent’s Bilingual SLP noted that, while it was a judgment call and not necessarily unreasonable not to have Parent present during the DOE evaluation, that made it difficult to determine whether Student’s performance during the evaluation was representative of her typical abilities (Tr: 223-224; Ex HH-2 ¶7). By merely observing that Student frequently chooses to perform “academic” tasks in English, the language used in school, the DOE evaluation does not address whether Student’s processing delays are affected by the fact that Student “appears to be transferring her skills from her L1 home language Spanish to her L2 school language English” (52).
Parent’s Bilingual SLP explained that “transferring” of skills from one language to another – applying the rules of one language when speaking in another -- is not the same as “codeswitching” – moving between two languages by a speaker who is fluent in both (Ex. HH-2 ¶10; Tr: 225-226). From the information in the DOE’s evaluation report, the Bilingual SLP could not determine whether Student was transferring or codeswitching, and there was no indication that the DOE evaluator appreciated the significance of that distinction.
The Bilingual SLP also explained that language dominance is not the sole factor in determining bilingual versus monolingual services. It is important for a true bilingual assessment to ascertain whether loss of fluency in L1 is negatively influencing overall language performance (HH-3 ¶¶ 11-12; Tr: 225-228).
The DOE report does indicate that some Spanish testing was conducted, using the CELF4, acknowledged by Parent’s Bilingual SLP as the most recent Spanish edition (Ex. 5-2; HH-4 ¶ 15). The DOE report indicates that Student performed poorly on that test, and it was “discontinued” with testing continued in English instead. The DOE report goes on to make several references to “translating tasks to Spanish” to see if Student’s performance on English-language tasks would improve (it did not). Such translation is not equivalent to or even consistent with bilingual testing. As Parent’s Bilingual SLP explained, the DOE’s own Standard Operating Procedures Manual states that it is not good practice to translate standardized assessments into other languages, because “the translation of a standardized test can change the nature of the task in unintended ways” (HH-3 ¶ 14).
Finally, the phonological awareness section of the DOE’s speech-language evaluation notes that Student’s skills in this area are “scattered for her age,” with difficulties relating to rhyming, various aspects of syllable recognition, and difficulties with phoneme alliteration and discrimination, all of which “delays are impacting her reading readiness skills.” At the same time, the evaluator “noted that it was not clearly evident whether [Student] was really having trouble completing this task on her own, or she was being oppositional,” and the report indicates that “more testing is warranted in this area.” Finally, the whole section is marked “Fix this!!!” – a notation that offers no explanation as to whether it is Student’s skills in this area that so emphatically need fixing or something about the report itself (Ex. 5-7). This notation was not addressed at the IEP meeting (Tr: 117-18).
The purpose of SLT is to provide specialized support to a child who has impairment in receptive and or expressive processing of language. This is not the same as providing lessons in a particular tongue for a typically developing child, which might focus on expanding vocabulary or drilling grammatical rules. Parent testified on cross-examination that she wants to strengthen the child’s Spanish language skills because that is the language spoken in the home (Tr: 401, 403-404) This reflects a layperson’s imperfect understanding of the purpose of speech-language therapy in general, and of bilingual SLT in particular, and only serves to illustrate the importance of Parent having an independent expert with a realistic opportunity to access the necessary evidence and provide Parent with information to meaningfully discuss what services are appropriate for the Student (see Shaffer v. Weast, 546 U.S. at 60-61).
For all these reasons, I find that the DOE’s speech-language assessment was not truly a bilingual evaluation, and that the District must fund an independent speech-language evaluation to be conducted by a speech-language pathologist with a certified bilingual extension.[8]
The Parent has established, without any contradictory evidence from the DOE, that the proposed rate charged by the evaluator for the bilingual speech-language evaluation is reasonable and commensurate with market rates.
The Occupational Therapy Evaluation
The purpose of an OT evaluation is to identify whether Student’s skills are developing at an age-appropriate level that “allow her to participate in and benefit from her educational experience,” or whether her “development is delayed or abnormal in some way that negatively affects her ability to function in a school environment” (Ex. 6-2). According to the assessment, there was indication that Student’s proprioception awareness is not intact. The report stated that Student’s motor planning skills are dysfunctional, her vestibular awareness is not intact, her auditory processing is dysfunctional, and her life skills are dysfunctional (Ex. 6-4 to 6-5). During the DOE’s OT evaluation, Student “was constantly moving and touching things” including the fire alarm; she “needed directions given multiple times and some with physical cues”; at times Student “would not respond to her name or directions” (Ex. 6-3, 6-4).
The DOE’s OT evaluation described that Student simultaneously craves certain stimuli while attempting to process others, and stated that this “collision” of craving and processing “creates an overload on her central nervous system” that “impacts her ability to deal with challenging situations in class” (Ex. 6-5). The report stated that Student’s “treatment team” should “strongly consider her poor sensory motor integration/processing skills and its impact on her behavior” (Ex. 6-5, emphasis in original). The recommendation of the DOE’s evaluator was to continue the same level of OT service that Student has been receiving: 2x30 1:1 (Ex. 6-5, 6-6).
Parent’s Occupational Therapist expressed her opinion that the DOE’s evaluation was unclear about the nature and extent of Student’s dexterity and hand strength deficits, was not sufficiently specific about how student’s decreased motor planning affects Student’s functionality, and should have provided more specific information regarding Student’s sensory processing deficits, which might have been obtained by means of additional or different standardized assessment tools (Ex. GG-2 ¶¶ 7-10; Tr: 361-365). I find that the DOE’s OT evaluation, considered together with the Occupational Therapy Progress Report from July-December 2022, the 20222023 Occupational Therapy Goals that specifically address sensory integration and regulation and activities of daily living, and the Functional Behavior Assessment and Corresponding Behavior Intervention Plan that addresses Student’s behavior of pressing things to her face for sensory input (Exs. 6, 13, 14, 15), provided sufficient information for Parent to meaningfully discuss and the CSE to formulate OT goals and a service plan. The issue at this hearing is the adequacy of the assessments, not whether Parent agrees with the appropriateness of the conclusions reached by the CSE or the specific recommendations in the IEP. Parent’s request for an independent occupational therapy evaluation is denied.
CONCLUSION
In all, I find that the neuropsychological and additional independent bilingual speechlanguage evaluations requested by the Parent are necessary components of “a comprehensive, multi-focused assessment of all areas of the child’s disability.” D.S. by M.S. and R.S. v. Trumbull
Bd. of Educ., 975 F.3d at 164.[9]
The resulting reports must be placed before a Committee on Special Education (CSE) to inform the development of an Individualized Educational Program (IEP) for the Student. See Letter to Zirkel, 74 IDELR 142 (OSEP 2019) (“if the parent obtains an IEE … the results of the evaluation must be considered by the public agency, if it meets agency criteria, in any decision made with respect to the provision of a free appropriate public education (FAPE) to the child”).
ORDER
WHEREFORE, IT IS HEREBY ORDERED that:
1. The DOE shall, at its sole cost and expense, fund the following evaluations at the following rates (which include the cost of translation of reports into the language requested by the
Parent):
a. A bilingual Speech/Language evaluation, to be performed by a certified Speech- Language Pathologist with a Bilingual Extension credential, at a rate of up to
$2,800.00 (two thousand eight hundred dollars), and
b. A bilingual Neuropsychological evaluation obtained by the Parent at the rate of
$6,000.00 (six thousand dollars).
c. Transportation for Student and Parent to and from the above evaluation(s).
2. The New York City Department of Education’s Impartial Hearing Implementation Unit shall make payment for each of the evaluations by one of the following methods, at the election of the Parent:
a. By payment directly to the provider(s) of the above-ordered IEEs within 15 calendar days of the DOE’s receipt of the IEE report and an invoice from the provider(s);
b. By reimbursement to the Parent within 15 calendar days of the DOE’s receipt of the IEE report and proof of payment by the Parent; or
c. By issuance of a payment authorization in the amount listed for the IEEs ordered in 1(a) and 1(b) above, within no more than five business days after the date of this
Order.
3. The Parent shall provide the DOE with copies of the Evaluations and any related tests and reports, within five (5) school days of Parent’s receipt of such evaluations, tests, and reports.
4. The DOE shall reconvene the CSE within ten (10) school days after receipt of the evaluation reports and reconsider Student’s IEP in light of such reports.
5. The claims of both parties are otherwise dismissed. SO ORDERED. Dated: September 1, 2023 _Olivia Sohmer____
/s/
OLIVIA SOHMER, 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.
APPENDIX A – DOCUMENTATION ENTERED INTO THE RECORD
DOE’S EXHIBITS
Exhibit Document Date Pages
1 WITHDRAWN
2 DPC #248198 ((Includes IEE Request at pages 5-6) 05.09.23 9 3 Consolidation Order (Case No. 248198 into 247608) 05.19.23 3 4 Psychoeducational Evaluation Report 03.06.23 4 5 Speech and Language Assessment 03.14.23 9 6 Occupational Therapy Evaluation 03.06.23 7 7 Social History Update 03.16.23 3 8 Prior Written Notice 04.14.23 8 9 Educational Progress Report Dec. 2022 7 10 2022-2023 Classroom Goals 2022-2023 4 11 Speech and Language Therapy Progress Report Dec. 2022 4 12 2022-2023 Speech and Language Goals 2022-2023 2 13 Occupational Therapy Progress Report Dec. 2022 4 14 2022-2023 Occupational Therapy Goals 2022-2023 2 15 Functional Behavior Assessment & January, 2023 8
Corresponding Behavior Intervention Plan
16 IEP 05.31.23 42
17 Student Progress Report 04.23.[21] 7 18 Physical Therapy Evaluation 3.01.23 5 19 Neuropsychological Evaluation 12.09.19 18
20 Email to Parent’s Attorney with Translated Evaluations 06.28.23 28
M [Withdrawn – Cross-reference DOE Ex. 15] N Physical Therapy Assessment Report (Bilingual) 12-xx-19 5 O Speech-Language Assessment Report (Bilingual) 12-xx-19 11 P [Withdrawn – Cross-reference DOE Ex. 19] Q Functional Behavior Assessment Report 11-25-19 28 R Occupational Therapy Assessment Report 05-03-19 12 S [Withdrawn – Cross-reference DOE Ex. 9] T [Withdrawn – Cross-reference DOE Ex. 11] U [Withdrawn – Cross-reference DOE Ex. 13] V [Withdrawn – Cross-reference DOE Ex. 8] W IEE Request (with delivery email chain) 04-10-23 4 X [Withdrawn – Cross-reference DOE Ex. 7] Y Letter to [Federal] Court [Identification Only] 02-06-23 2 Z Emails [re Federal Litigation] to DOE Counsels [Identification 01-31-23 2
Only] AA Letter to CSE (with delivery email) [Identification Only] 01-04-23 2 BB [Withdrawn] CC Public Profile Documents re [DOE’s SPEECH-LANGUAGE as of June 16
EVALUATOR] 27, 2023
DD Affidavit of [PARENT’S NEUROPSYCHOLOGIST] with 07-05-23 14
CV EE [Withdrawn] FF Affidavit of [Proprietor, Speech-Language and Occupational 06-15-23 3
Therapy Evaluation Provider] with Rate Sheet GG Affidavit of [Occupational Therapist] with Resume 06-14-23 3 HH Affidavit of [Bilingual Speech/Language Pathologist] with 06-13-23 7
Resume II Sworn Statement of Parent (Spanish) with Certificate of 07-27-23 15
Translation (English)
IHO’S EXHIBITS
| i | Parent’s Due Process Response (Case No. 248198) (undated) 8 |
| ii | DOE Due Process Response (Case No. 247608) 4/27/2023 4 |
| iii | Parent’s Omnibus Motion (Motion to reconsider evidentiary 7/18/2023 13 ruling) |
| iv | emails re: motion to reconsider evidentiary ruling 7/21/2023 4 |
| v | Redline of Parent’s draft Affidavit with Exhibit Cross- 7 references |
| vi | DOE Closing Summation 7/27/2023 2 |
| vii | Parent Closing Statement 8/7/2023 9 Case No. 247608 |
Footnotes
[2] A list of all exhibits is annexed hereto as Appendix A, “Documents Entered into the Record.” Exhibits are labeled with Arabic numerals for the District’s (DOE’s) Exhibits; with letters for Parent’s Exhibits; and with lower case Roman numerals for Impartial Hearing Officer’s (IHO’s) Exhibits. Exhibit labels will be followed by page numbers as needed and appropriate.
[3] Duplicative proffers were withdrawn. Because Parent’s testimonial Affidavit referenced the DOE’s recent evaluations using withdrawn exhibit labels, the parties stipulated to the addition of cross references in a redline copy of Parent’s Affidavit which was marked as IHO Ex. v (Tr: 158-163).
[4] To accommodate witness schedules and discussion of other matters, Parent’s Opening was deferred until after two of Parent’s witnesses had already testified (Tr: 24, 308, 324, 331-336).
[5] Parent’s motion to dismiss the District’s DPC was denied (Tr: 320-323), as was Parent’s request for adjournment and/or amendment of the DPC (Tr: 323).
[6] On the question, “For a student with limited English proficiency, do they need a special education service to address their language needs as they relate to the IEP?” the 5/31/2023 IEP answers “No” (Ex. 16-13). This question is not
[7] The District marked these as separate exhibits at the hearing. For purposes of this proceeding I assume that the goals document was before the CSE, even though it is not specifically listed in the IEP (see Ex. 16-1).
[8] Parent testified that in 2022-2023, Student received bilingual SLT at school and the same provider also came to the home (“the School/Home SLT”) and also ABA therapy (Tr: 411-413).
[9] Parent’s request in the DPC for an Assistive Technology evaluation (Ex. A-2) was not pursued, and it is dismissed.
[21] Speech-Language Progress Report 06.09.20 3 PARENT’S EXHIBITS Exhibit Document Date Pages A Parent’s Due Process Complaint (No. 247608) 04-20-23 4 B DOE’s Due Process Response (No. 247608) 04-27-23 4 C Stipulation and Order, US Dist Ct. SDNY 06-24-21 16 D S.D.N.Y. Opinion and Order Granting Preliminary Injunction 3-26-21 [Identification Only] E Findings of Fact and Decision (183763) [Identification Only] 2-17-20 F IEP 06-02-22 38 G IEP 05-04-20 34 H Neuropsychological Assessment Report (Bilingual) 07-03-23 48 I [Withdrawn – Cross-reference DOE Ex. 5] J [Withdrawn – Cross-reference DOE Ex. 4] K [Withdrawn – Cross-reference DOE Ex. 6] L [Withdrawn – Cross-reference DOE Ex. 18]