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CASE NUMBER: 598793 – NYC: 247741
FINDINGS OF FACT AND DECISION
Case Number: 247741 Student’s Name: REDACTED School District: N.Y.C. Dept. of Ed., REDACTED Impartial Hearing Officer: Peggy K. Chan Date of Filing: 04/25/2023 Hearing Requested by: REDACTED (“Parent”) Date of Hearing: 06/23/2023 Record Close Date: 07/19/2023 Date of Decision: 07/19/2023 Case No. 247741
NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 23, 2023:
REDACTED (hereinafter referred to as “Parent’s Representative”) — Student
REDACTED (hereinafter referred to as “Parent”) — Student
(“DOE”): — DOE
REDACTED (hereinafter referred to as “District’s Representative”) Case No. 247741
BACKGROUND
On April 25, 2023, Parent, through Parent’s Representative, filed a Due Process Complaint (“DPC”) against the New York City Department of Education (“District” or “DOE”) pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq. and its federal and state implementing regulations, and Section 504 of the Rehabilitation Act (“Section 504”) (Ex. P-A).
In the DPC, Parent alleged, among other things, that Student’s evaluations are over three years old and that the District failed to appropriately respond to Parent’s written request for Independent Educational Evaluations (“IEEs”) dated March 23, 2023 (Ex. P-A). By way of relief, Parent seeks an order directing the District to fund the following IEEs at Parent’s requested rates and through providers of Parent’s choosing:
(1) A neuropsychological evaluation;
(2) A speech-language (“SL”) evaluation;
(3) An occupational therapy (“OT”) evaluation;
(4) An assistive technology (“AT”) evaluation;
(5) A physical therapy (“PT”) evaluation;
(6) An Applied Behavior Analysis (“ABA”) skills assessment;
(7) A Functional Behavioral Assessment (“FBA”); and
(8) A Behavior Intervention Plan (“BIP”) to be developed in conjunction with the FBA. (Id. at 12).
PROCEDURAL HISTORY
I was appointed on April 27, 2023 to determine the claims in the DPC and to conduct an impartial hearing pursuant to 20 U.S.C. § 1415(f) and the New York State Education Law § 4404(1). The parties appeared for the settlement and prehearing conferences on May 31, 2023 and a status conference on June 15, 2023.
A Due Process Hearing (“DPH”) was held on June 23, 2023. At the DPH, the District did not present any documentary or testimonial evidence and took no position as to Parent’s entitlement to the IEEs or the rates Parent requested (Tr. at 5). Parent sought to introduce thirteen documents in support of her case, which were all admitted to the record without objection from the District (Tr. at 10). A list of exhibits admitted into evidence is attached hereto as Appendix B.
The District did not make an opening statement or a closing statement (Tr. at 8-9 & 14). Parent made a combined opening and closing statement (Tr. at 10-12).
JURISDICTION
A decision in this matter is being rendered pursuant to the IDEA2 and its implementing regulations,3 and the New York State Education Law4 and its implementing regulations.5
IHOs have authority to hear claims under Section 504 if delegated the authority by the Local Education Agency (“LEA”). The DOE delegated to the New York City Office of Administrative Trials and Hearings (“OATH”) the authority to adjudicate due process complaints under Section 504.6 In the present case, I find that all of Parents’ Section 504 claims are fully subsumed within the framework of the IDEA. Parents did not identify any specific regulatory requirement under Section 504 that would merit separate analysis and discussion (Tr. at 5-6). Therefore, I do not separately analyze the Section 504 claims raised in the DPC or address it further in this decision.
LEGAL FRAMEWORK
Burden
The school district bears 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.[1] Accordingly, the school district bears the burden of showing that its evaluation of student was appropriate in order to prevail in its challenge to Parent's request for IEEs at public expense. 2
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.” 3 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. 4 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 to 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.” [5]
If a parent requests an IEE, the school district must provide the parent with information about where they can obtain an IEE. 6 A school district can set criteria regarding the IEE, including the qualifications of the examiner, but the district’s criteria must be the same as the criteria it uses for its own evaluations, and the district cannot impose additional conditions or timelines related to the IEE.[7] For example, a school district may not compel the use of a particular evaluator or its own chosen evaluator for an IEE,[8] nor can it deny an IEE at public expense based solely on financial cost.[9] A parent’s right to an IEE at public expense may not be conditioned on the school district’s ability to first conduct its own assessment before granting the parent’s request for an independent IEE.[10] Finally, while the school district may “ask for the parent’s reason why he or she objects to the public evaluation,” the district cannot require an explanation or delay providing the IEE until the parent provides an explanation. 11
When 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
3
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).
8 NYCRR § 200.5(g)(1)(i).
8 Board of Education of the County of Nicholas v. H.A., 445 F. App’x 660 (4th Cir. 2011).
8 N.Y.C.R.R. § 200.5(g)(1)(iii).
expense; or (2) initiate a due process hearing to establish that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria.[12] A parent is entitled to only one IEE at public expense each time the public agency conducts an evaluation with which the parent disagrees. 13
A parent is entitled to an IEE when the district does not conduct a sufficiently comprehensive evaluation or fails to test the student in an area of need.[14] In D.S. v. Trumball Bd. of Educ., the court stated that, “[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.” 15 The U.S. Department of Education's Office of Special Education Programs (“OSEP”) has similarly stated that when 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.” [16]
An IEE may also be requested by an impartial hearing officer “as part of a hearing on a due process complaint.” 17 The Regulations do not provide limitations or guidance about hearing officer requests or directives for IEEs. There are however limitations to an IHO’s authority to order IEEs “‘as part of’ the larger process.” [18]
FINDINGS OF FACT AND DECISION
After a full review of the record generated at hearing, I make the following findings of fact and determinations.
8 NYCRR § 200.5(g)(1); 34 CFR § 300.502(b)(5).
8 NYCRR § 200.5(g)(2); 8 NYCRR § 200.5(j)(3)(viii); 34 CFR § 300.502(d).
Student is REDACTED year-old classified as a student with Autism under the IDEA (P-B-5). Student’s eligibility for special education supports and services is not in dispute. According to a neuropsychological evaluation conducted in October 2019, Student is diagnosed with Attention-Deficit/Hyperactivity Disorder (“ADHD”) – Combined Type, Autism Spectrum Disorder (“ASD”), Mixed Receptive Expressive Language Delay, and Mild Mental Retardation (Ex. P-C-9).
At ten months, Student qualified for Early Intervention services and received special instruction, speech and language therapy (“SLT”), PT, and OT (Id. at 2). At sixteen months, Student was diagnosed with ASD and began receiving ABA therapy (Id.). According to the October 2019 neuropsychological evaluation, Student’s overall intellectual functioning was “very delayed” (FSIQ=59, 1st percentile) (Id. at 5). His performance on verbally based measures was within the “extremely low” range (Id. at 8). Student was nonverbal and it was not possible to assess him for expressive language (Id.). His receptive skills were also delayed (Id.). His performance on nonverbal test of intelligence was within the borderline range (Id. at 9). His immediate non-verbal memory was “extremely delayed” (Id.). His attention span was “extremely low” (Id.). His overall level of academic achievement was “very delayed” (Id.). His abilities with respect to social perception was delayed (Id.). His adaptive behavior composite, which assessed his communication, daily living, and social skills, was within the “extremely low” range (Id.).
On October 24, 2022, the Committee on Special Education (“CSE”) convened an Individualized Education Plan (“IEP”) meeting to determine an appropriate educational program and placement for Student (Ex. P-B). The resultant IEP classified Student with Autism and recommended a twelve-month 6:1+1 special class at District 75 and Adapted Physical Education, with the following related services: (1) counseling, individual service, two times a week for 30 minutes; (2) OT, individual service, four times a week for 30 minutes; (3) parent counseling and training, group service, once per month for 60 minutes;
(4) PT, individual service, two times per week for 30 minutes; and (5) SLT, individual service, four times per week for 30 minutes (Ex. P-B-21-22). In addition, Student was recommended to receive a full-time 1:1 paraprofessional for behavior support (Id. at 22), as well as full-time assistive technology devices including communication board and dynamic display speech generating device (“SGD”) (Id.).
Parent asserted that Student was last evaluated pursuant to an August 2019 impartial hearing order granting Parent IEEs (Ex. P-A-4). Between September to November of 2019, Student received an OT evaluation, SL evaluation, AT evaluation, a neuropsychological evaluation, a FBA, and an ABA skills assessment (Id. at 4-6). Parent asserted that Student was due a triennial evaluation in November 2022 but the District failed to conduct a new comprehensive evaluation (Id. at 9-10). In a letter dated March 23, 2023, Parent expressed her disagreement with the District’s triennial evaluation that needed to occur in or before November 2022 and requested the following IEEs: (1) a neuropsychological evaluation; (2) a SL evaluation; (3) an OT evaluation; (4) a PT evaluation; (5) an AT evaluation; (6) a FBA; (7) a BIP to be developed in conjunction with the FBA; and (8) an ABA skills assessment (Ex. P-E). In the letter, Parent requested specific providers at specific rates (Id.). Parent asserted that the District failed to respond in any way to her letter (Ex. P-A-10).
Pursuant to federal and state regulations, the school district must conduct triennial reevaluations for a student at least once every three years.[19] The District presented no evidence that it had met this obligation. In a Prior Written Notice that was issued after the October 24, 2022 IEP meeting, the District listed four documents that formed the bases of the CSE determination, including a FBA dated April 4, 2021 and a neuropsychological evaluation dated June 1, 2021 (Ex. P-B-2). However, in light of Parent’s assertion that Student has not been fully evaluated since November 2019, the District did not present any evidence to explain what those documents were or argue that they were appropriate evaluations of Student. Even if the District did conduct some form of evaluation of Student prior to the October 24, 2022 IEP, given Student’s extensive and well-documented needs in academic, cognitive, social, and emotional domains, I find that the District failed to demonstrate that it had conducted a sufficiently comprehensive evaluation or assess Student in all areas of his disability. [20]
I find that, in a letter dated March 23, 2023, Parent had articulated her disagreement with the District’s failure to comprehensively evaluate Student in over three years (P-E). At the DPH, the District presented no evidence that it had, without unnecessary delay, responded to Parent’s IEE request by either providing the IEEs at public request or initiating a DPC to defend its own evaluation. 21 In failing to initiate a DPC on a timely basis upon receipt of Parent’s letter, and later on, in electing not to make opening and closing statements at the DPH, the District waived the opportunities to defend the appropriateness of its own evaluation.
I further find that Parent has demonstrated the appropriateness of each of the eight evaluations. A parent has the right to request an IEE to assess a child in all areas of a child’s disability to determine the nature and extent of the special education and related services that child needs.[22] All of the requested evaluations had been previously conducted on Student as each related to an area of his disability (Ex. PA-5-6; P-C; P-D). In addition, the October 24, 2022 IEP documented Student’s disability in the areas of OT (Ex. P-B-5) and SLT (Id. at 5-6), and his aggressive and self-injurious behavior (Id. at 8). As such, the IEP noted that Student required a BIP (Id. at 10) and recommended Student to receive Adapted Physical Education, OT, SLT, and a full-time 1:1 paraprofessional for behavior support (Id. at 21-22). Student had also been deemed to need assistive technology devices (Id. at 7, 10, 22). Furthermore, Student’s last ABA Skills Assessment Report, dated November 21, 2019, recommended that Student receive an intensive ABA program with full time 1:1 and small group individualized instructional format (Ex. P-D-19-20). The District presented no evidence or testimony to challenge the appropriateness of these evaluations or the qualifications of the proposed evaluators. I find that awarding Parent the IEEs would ensure that Student’s levels of functioning and needs are comprehensively assessed, and appropriate interventions can be implemented.
Cost
A school district may establish criteria to ensure that the cost of an IEE at public expense is reasonable. However, the U.S. Department of Education has stated the following:
[i]n order to avoid unreasonable charges for IEEs, a district may establish maximum allowable charges for specific tests. If a district does establish maximum allowable charges for specific tests, the maximum cannot simply be an average of the fees customarily charged in the area by professionals who are qualified to conduct the specific test. Rather, the maximum must be established so that it allows parents to choose from among the qualified professionals in the area and only eliminates unreasonably excessive fees. When enforcing reasonable cost containment criteria, the district must allow parents the opportunity to demonstrate that unique circumstances justify an IEE that does not fall within the district’s criteria. If an IEE that falls outside the district’s criteria is justified by the child’s unique circumstances, that IEE must be publicly funded. 23
Here, the District failed to offer any evidence as to reasonable costs. The District also did not present any evidence challenging the rates of the providers proposed for the evaluations.
The hearing record includes proposed evaluators and their rates for all eight evaluations (Ex. P-F through P-M). Lacking any contradictory evidence or challenge from the District, I find that the proposed evaluators’ rates for the IEEs being ordered are not unreasonable and are commensurate with prevailing market rates.
Based on the foregoing, I find that Parent is entitled to all eight requested IEEs at the rates set forth in my Order below. These IEEs shall therefore be funded as Ordered.
ORDER
Based upon the above Findings, it is hereby:
1. ORDERED that, the New York City Department of Education is directed to fund the following IEEs, by issuing payment directly to the providers within thirty (30) days of the submission of copies of the evaluations and invoices:
a. A neuropsychological evaluation to be conducted by a New York State licensed clinical psychologist chosen by Parent, at market rate not to exceed $6,500.00
b. A speech-language evaluation to be conducted by a New York State licensed speech and language pathologist chosen by Parent, at market rate not to exceed $2,500.00.
c. An occupational therapy evaluation to be conducted by a New York State licensed occupational therapist chosen by Parent, at market rate not to exceed $2,500.00.
d. A physical therapy evaluation to be conducted by a New York State licensed physical therapist chosen by Parent, at market rate not to exceed $1,500.00.
e. An assistive technology evaluation to be conducted by a New York State licensed speech and language pathologist chosen by Parent, at market rate not to exceed $3,000.00.
f. A functional behavioral assessment (“FBA”) to be conducted by a New York State licensed psychologist or behavior analyst, or board-certified behavior analyst chosen by Parent, at market rate not to exceed $4,125.00.
g. A behavior intervention plan to be developed in conjunction with the FBA through a New York State licensed psychologist or behavior analyst, or board-certified behavior analyst chosen by Parent, at market rate not to exceed $1,375.00.
h. An Applied Behavior Analysis Skills Assessment to be conducted by a New York State licensed psychologist, behavior analyst, or board-certified behavior analyst chosen by Parent, at market rate not to exceed $4,125.00.
SO ORDERED.
DATED: July 19, 2023
/s/ Peggy K. Chan
Impartial Hearing Officer
Peggy K. Chan
APPENDIX A – REDACTION IDENTIFICATION PAGE
REDACTED
APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD
PARENT’S EXHIBITS
Exhibit Title Date Pages
P-A Parent’s Hearing Request 04/25/23 13
P-B Individualized Education Program 10/24/22 31
P-C Neuropsychological Evaluation 10/31/19 14
P-D ABA Skills Assessment 11/21/19 21
P-E Independent Educational Evaluation Request 03/23/23 3
P-F Resume of Provider 1 Undated 9
P-G Resume of Provider 2 Undated 5
P-H Resume of Provider 3 Undated 3
P-I Resume of Provider 4 Undated 2
P-J Fee Schedule for Provider 1 Undated 1
P-K Fee Schedule for Provider 2 Undated 2
P-L Fee Schedule for Provider 4 Undated 1
P-M Fee Schedule for Provider 3 Undated 2
Footnotes
[1] See NYS Educ. Law § 4404(1)(c). See SRO-19-101.
[8] NYCRR § 200.1(z).
[5] Shaffer v. Weast, 546 U.S. 49, 60-61 (2005).
[7] 34 C.F.R. § 300.502(e)(1); 8 NYCRR § 200.5(g)(1)(ii); Letter to Kirby, 213 IDELR 233 (OSERS 1989).
[9] Letter of OSERS, 2002.
[10] Letter to Carroll, 68 IDELR 279 (OSEP 2016).
[12] 34 C.F.R. § 300.502(b)(2)(i)-(ii); 8 NYCRR § 200.5(g)(1)(iv) (emphasis added).
[14] D.S. v. Trumbull Bd. of Educ., 975 F.3d 152, 165 (2d Cir. 2020). 15 Id.
[16] Letter to Baus, 65 IDELR 81 (OSEP 2015); see also Letter to Carroll, 68 IDELR 279 (OSEP 2016).
[18] Lyons v. Lower Merrion Sch. Dist., 2010 WL 8913276, at *3 (E.D. Pa. Dec. 14, 2010). See also S. Kingstown Sch. Comm. v. Joanna S., 2014 WL 197859, at *9 n.9 (D.R.I. Jan. 14, 2014), where the opinion that the regulation empowers hearing officers to solicit independent expert opinions was acknowledged, but disagreement was expressed that the regulation gives an IHO "the inherent power to make up remedies out of whole cloth", aff'd, 773 F.3d 344 (1st Cir. 2014) (cited in Application of a Student with a Disability, Appeal No. 21-021).
[19] See 20 U.S.C. § 1414(a)(2)(B)(ii); 8 NYCRR § 200.4(b)(4).
[20] See D.S. v. Trumbull Bd. of Educ., 975 F.3d 152, 165 (2d Cir. 2020). See 34 C.F.R. § 300.502(b)(2)(i)-(ii); 8 NYCRR § 200.5(g)(1)(iv).
[22] See Letter to Baus, 65 IDELR 81 (OSEP 2015); see also Letter to Carroll, 68 IDELR 279 (OSEP 2016). See Letter to Kirby, 213 IDELR 233 (OSERS 1989).