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FINDINGS OF FACT AND DECISION
Case Number: 249039
Student’s Name: REDACTED
School District: N.Y.C. Dep’t. of Educ., REDACTED Impartial Hearing Officer: John Henry Olthoff
Date of Filing: 06/16/2023
Hearing Requested by: Parent
Date of Hearing: 08/16/2023
Date of Decision: 08/30/2023
NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 19, 2023
REDACTED, Esq. — Student
REDACTED, Esq., Attorney — DOE
NAMES AND TITLES OF PERSON WHO APPEARED ON AUGUST 16, 2023
REDACTED, Esq., Attorney — Student
REDACTED, Parent (hereinafter “Parent”) — Student
REDACTED, Esq., Attorney — DOE
BACKGROUND
On June 16, 2023, Parent, through counsel, initiated a due process complaint (“DPC”) against Respondent, New York City Department of Education (“DOE”), pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq. (“IDEA”), the Regulations of the Commissioner of Education, 8 N.Y.C.R.R. § 200.5, and Section 504 of the Rehabilitation Act. On June 21, 2023, I was appointed as the Impartial Hearing Officer (“IHO”) in this matter. A Settlement and Pre-Hearing Conference (“PHC”) was held on July 19, 2023. DOE submitted a partial Motion to Dismiss (“MTD”) on the basis of collateral estoppel/res judicata on July 20, 2023 (Ex. 2) [1], and Parent submitted their opposition the same date. (IHO Ex. I). This IHO issued a determination on the record denying DOE’s MTD. Specifically, because Parent is complaining of an alleged violation that occurred after the Findings of Fact and Decision (“FOFD”) was issued in a matter concerning the prior school year, Parent’s claims were not barred for their having been brought after the previous matter concluded and not before (which would mean that Parent would have had to complain about DOE’s alleged violation before it happened). However, even if DOE’s MTD were to be granted with regard to the 2022-2023 school year, Parent’s claims, and requested relief, would be identical if the scope of the matter were restricted to only the 2023-2024 school year.
The impartial hearing was held on August 16, 2023. DOE entered three (3) documents into the record without objection but did not call any witnesses.[2] Parent entered eight (8) documents into the record without objection and called Parent as a witness. DOE presented no opening or closing statement and opted not to cross-examine Parent on her testimony.
LEGAL FRAMEWORK
The Individuals with Disabilities Education Act, 20 U.S.C. § 1400, et seq. (“IDEA”), requires school districts to provide a free appropriate public education (“FAPE”) to students with disabilities, which consists of special education and related services designed to meet students’ unique needs. The IDEA also seeks to ensure that the rights of students with disabilities, and their parents/guardians, are protected. Forest Grove School Dist. v. Y.M., 557 U.S. 230, 239 (2009); Bd. of Educ. of Hendrick Hudson C.S.D. v. Rowley, 458 U.S. 176, 206-07 (1982).
A school district provides a FAPE to a student with a disability when it complies with the various procedural requirements of the IDEA, and the school district’s Committee on Special Education (“CSE”) develops an Individualized Education Program (“IEP”) consistent with those procedural requirements and is reasonably calculated to enable the student to receive educational benefits. Rowley, supra, 458 U.S. at 206-07; T.M. v. Cornwall C.S.D., 752 F.3d 145, 151, 160 (2d Cir. 2014). Under IDEA, the obligation to identify and evaluate students, and to develop and implement IEPs for students with special education needs rests solely on the school district. In New York, the school district- bears the burden of proof, including the burden of production and persuasion, regarding any issue at an impartial hearing, except for the appropriateness of a unilateral placement, where the burden shifts to the parent. N.Y. Educ. Law § 4404(1)(c).
A parent may file a DPC with respect to “any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a [FAPE] to such student.” 8 N.Y.C.R.R. § 200.5(i)(1); see 20 U.S.C. § 1415(b)(6)-(7); 34 C.F.R. 300.503(a)(1)-(2), 300.507(a)(1) (emphasis added).
If a parent alleges procedural violations of the IDEA, an IHO may find that a student did not receive a FAPE if such procedural violations: 1) impeded the student’s right to a FAPE; 2) significantly impeded the parent’s opportunity to participate in the decision-making process regarding the provision of FAPE to the student; or 3) caused a deprivation of educational benefits. See 20 U.S.C. §1415(f)(3)(E); 34 C.F.R. §300.513(a)(2); 8 N.Y.C.R.R. §200.5(j)(4)(ii); see also Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 (2007).
For a school district to provide “merely more than de minimis” progress from year to year is insufficient; the U.S. Supreme Court has opined that the essential function of the IEP is to set out a plan for pursuing academic and functional advancement for the disabled student, and that such educational program must be reasonably calculated to enable the student to make progress appropriate in light of the child’s unique circumstances. See Endrew F. v. Douglas Cty. School
Dist. RE-1, 137 S. Ct. 988, 999, 1001, 2017 U.S. LEXIS 2025 (2017). A school district’s failure to offer or provide a FAPE for a disabled student may arise out of many different scenarios, including multiple procedural violations of IDEA requirements by the district, see R.E. v. New York City Dept. of Educ., 694 F.3d 167, 189-91 (2d Cir. 2012), and/or a substantively inadequate and inappropriate IEP. See Rowley, supra, 458 U.S. at 192. “Multiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not.” R.E., supra, 694 F.3d at 190-91; see also M.H. v. N.Y.C. Dept. of Education, 685 F.3d 217, 245 (2d Cir. 2012); Werner v. Clarkstown C.S.D., 363 F. Supp.2d 656, 659 (S.D.N.Y. 2005).
A school district’s CSE is required to assess a student in all areas related to the suspected disability, including, where appropriate, health, vision, hearing, social and emotional status, general intelligence, academic performance, communicative status, and motor abilities. See 8 N.Y.C.R.R. § 200.4(b)(6)(vii); see also 34 C.F.R. § 300.304(c)(4). The evaluation must be sufficiently comprehensive to identify all of the student’s special education needs, whether or not commonly linked to the disability category in which the student has been identified. 8 N.Y.C.R.R. § 200.4(b)(6)(ix); see also 34 C.F.R. § 300.304(c)(6); R.Z. v. City Sch. Dist. of New Rochelle, 2018 U.S. Dist. LEXIS 56564 (S.D.N.Y. 2018). Additionally, part of any reevaluation of a student, the CSE and other qualified professionals shall review the existing evaluative data on a student and determine whether additional evaluative data are needed. 8 N.Y.C.R.R. § 200.4(b)(5).
School authorities can be expected 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., supra, at 1002.
An Independent Educational Evaluation (“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). 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.” Shaffer v. Weast, 546 U.S. 49, 60-61 (2005).
A parent’s does not have to express disagreement “in a formalistic manner…to be found to have disagreed in substance with an assessment.: See Genn v. New Haven Bd. of Educ., 219 F.
Supp. 3d 296, 317 (D. Conn. 2016). If a parent requests an IEE, the school district must provide the parent with information about where they can obtain an IEE. 8 NYCRR § 200.5(g)(1)(i). 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. 34 C.F.R. § 300.502(e)(1); 8 NYCRR § 200.5(g)(1)(ii); Letter to Kirby, 213 IDELR 233 (OSERS 3 1989). For example, a school district may not compel the use of a particular evaluator or its own chosen evaluator for an IEE (Board of Education of the County of Nicholas v. H.A., 445 F. App’x 660 (4th Cir. 2011)), nor can it deny an IEE at public expense based solely on financial cost (Letter of OSERS, 2002). 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. Letter to Carroll, 68 IDELR 279 (OSEP 2016). If a parent disagrees with a district’s 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 the child needs. Letter to Baus, 65 IDELR 81 (OSEP 2015). 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. 8 N.Y.C.R.R. § 200.5(g)(1)(iii).
Office of Special Education and Rehabilitation Services, a division of the federal Department of Education.
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 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 C.F.R. § 300.502(b)(2)(i)-(ii); 8 NYCRR § 200.5(g)(1)(iv) (emphasis added).
FINDINGS OF FACT
After considering all the evidence, as well as Counsels’ arguments, this IHO’s Findings of Fact are as follows:
1. Student is a REDACTE year-old boy with a disability, with diagnoses of, inter alia, a language disorder and attention deficit hyperactivity disorder. (Ex. G-1) [3].
2. DOE conducted an Educational Evaluation Report (“EER”) on April 24, 2023, with a report issue date of May 17, 2023. (Ex. C).
3. The EER includes a psychoeducational evaluation, with selective subtests from the Wechsler Individual Achievement Test-4th Edition (“WIAT-4”). (Id.).
4. The EER notes, inter alia, that “current academic testing point to below grade level expectations.” (Id.).
5. The EER notes that Student has a diagnosis of autism; however, his disability classification on his IEP is Other Health Impairment (“OHI”). (Id.). [4]
6. Progress Reports in various subjects/disciplines were created on or about March 31, 2023.
(Ex. E).
7. The Progress Reports include updates in Counseling and Speech and Language Therapy (“SL”) were created on March 31, 2023. (Id.). The SL progress report does not contain any formal testing. (Id.).
8. The Progress Reports somewhat contradictorily note that Student “struggles to explain how evidence is supporting a claim,” that he “struggles with confidence when taking a test,” that he also “continues to require moderate prompting to elaborate responses when expressing his thoughts and opinions both verbally and in written form,” while noting that he receives high grades in academic subjects (including 96 in History and 90 in Science), which, absent rebuttal evidence, lend credence to Parent’s claim that “DOE kept moving [Student] through grade levels even though his goals on the IEPs stayed the same and I did not hear about any progress from his teachers and staff.” (See, e.g., Exs. C, E, G).
9. A Classroom Observation was conducted on April 24, 2023. (Ex. D).
10. DOE convened a Committee on Special Education (“CSE”) on May 22, 2023 to develop an IEP for Student (“May 2023 IEP”). (Ex. B).
11. The IEP indicates that Student’s intellectual functioning is “assessed to be in the Extremely Low range,” (Ex. B-2), and that his Instructional/Functional levels for this 9th Grade student are at 6th Grade for Reading and 5th Grade for Math (Ex. B-23). Again, this contradicts with his relatively high grade point average (94.98, per Ex. C) and his high grades in academic subjects. (See Ex. E).
12. The CSE recommended a 15:1 class with Special Education Teacher Support Services (“SETSS”) in English Language Arts (“ELA”) and math, as well as the related services of Counseling and SL. (Ex. B-17-18).
13. DOE failed to present evidence that it obtained Parent’s consent to evaluate Student prior to the May 22, 2023 IEP meeting.
14. Parent was not given notice of the evaluations to be conducted in contemplation of the May 2023 IEP meeting, nor was she provided with copies of the evaluations at the meeting. (Ex.
G-3).
15. Parent was not provided DOE’s evaluation prior to the May 2023 IEP. (Id.).
16. Parent first expressed disagreement with DOE’s evaluation and requested an IEE in her
DPC. (Ex. A).
ANALYSIS AND CONCLUSIONS OF LAW
PARENT IS ENTITLED TO AN IEE AT PUBLIC EXPENSE
DOE bears the burden to demonstrate that its evaluation is appropriate, and that its placement is reasonably calculated to enable Student to receive an educational benefit. New York Educ. Law § 4404(1)(c); Endrew F. supra. As an initial matter, DOE made no effort to sustain its burden, and so has failed as a matter of law to show by a preponderance of evidence that it offered or provided Student with a FAPE.
A Parent has the right to obtain relevant and necessary clinical data regarding, inter alia, their child’s cognitive, behavioral, and social-emotional abilities and needs in order to meaningfully participate in the IEP process. Here, it is undisputed that Parent was not provided with, or asked consent for, evaluations prior to the May 2023 IEP meeting. (Ex. G). It is likewise undisputed that Parent disagreed with DOE’s evaluation because, inter alia, Parent alleged that DOE’s evaluation was not sufficiently comprehensive. (Exs. A, G). Upon receipt of the request for IEE as encapsulated in the DPC, DOE was obligated to either 1) initiate a due process hearing to defend its evaluation; or 2) grant Parent’s requested IEE. DOE failed to do either. Parent is therefore entitled to an IEE at public expense.
While it is well-settled that a parent may initiate a DPC with respect to a district’s evaluation, the New York State Education Department’s Office of State Review (“SRO”) has, after numerous times affirming that a parent may request an IEE in a DPC in the first instance [5], has recently frowned upon such practice. See SRO Appeal No. 23-105.
However, the reasoning in SRO Appeal No. 23-105; specifically, that a parent should make the request separately in order to provide the district with the opportunity to engage with the parent in this regard outside of a due process proceeding, is not availing in this instance. Here, DOE failed to present any evidence it obtained Parent’s consent for its evaluation. Then, Parent was not informed of the existence of DOE’s evaluation and was not provided with DOE’s evaluation prior to the May 22, 2023 IEP meeting, and did not receive the documents until after the meeting.[6] (Ex. G). DOE had the opportunity to engage with Parent regarding its evaluation and it failed to even inform Parent of its existence until the May 2023 IEP meeting, and then did not provide Parent with the evaluation until after the meeting. At the hearing, DOE failed to present any evidence in defense of either its evaluation or the May 2023 IEP. Moreover, at the hearing, far from offering a cogent explanation for its recommendations, DOE failed to demonstrate how, or if, its evaluation informed the May 2023 IEP, and failed to show how, or if, any of its findings supported the deviation in program from the prior year’s IEP.
A parent is entitled to timely and comprehensive evaluative data in order to be a meaningful participant in their child’s IEP process. Here, DOE’s fumbling, including, inter alia, its ignorance of a directive to convene a review meeting within 14 days to recommend a placement for Student that could implement a prior IEP (Ex. 2-12) as well as its failure to timely provide Parent with its evaluation are sufficient on their own to constitute denial of FAPE for the time period at issue [7], as Parent was deprived of meaningful participation in the IEP process regardless of whether it is proper for Parent to request an IEE for the first time in a DPC. The award of an IEE in the instant matter is appropriate relief for DOE’s failure to offer or provide Student with a FAPE.
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.
Letter to Kirby, 213 IDELR 233 (OSERS 1989).
Here, DOE failed to offer any persuasive evidence as to reasonable costs beyond a general objection. DOE did not raise any objection to either Parent’s entitlement to, or the cost of, Parent’s requested IEE. In fact, DOE offered no evidence at all, which I take as tacit acknowledgement of its obligation to fund Parent’s requested IEE.
Informal guidance from the United States Department of Education's Office of Special Education Programs (“OSEP”) is consistent with these determinations, as OSEP has stated “[t]here is no Federal requirement that a parent notify the public agency in writing . . . that the parent will be requesting an IEE at public expense” Letter to Anonymous, 55 IDELR 106 (OSEP 2010); further, “[a] public agency may not require that a parent provide notification of the parent’s intent to obtain an IEE at public expense as a precondition for public payment for an IEE.” Letter to Saperstone, 21 IDELR 1127 (OSEP 1994). Moreover, the procedural protections enumerated in the IDEA concerning IEEs address a school district’s responsibility to fund the evaluations; the Committee on Special Education must review any IEEs regardless of which party is ultimately responsible for funding. See 8 NYCRR 200.5(g)(1)(v). The timing of the notice to the school district, whether before the parent has secured their evaluation or after, in no way impacts the school district’s responsibilities and rights under the Act: to either agree to fund the requested IEEs or file for due process and defend.
DECISION AND ORDER
IT IS HEREBY ORDERED that DOE denied Student a FAPE during the 2022-2023 and 2023-2023 school years; and it is further
ORDERED that DOE shall fund an Independent Educational Evaluation of Student, including the following:
a. A neuropsychological evaluation by a New York State licensed psychologist at a rate not to exceed $6,000.00; b. A Speech and Language evaluation by a New York State licensed speech pathologist at a rate not to exceed $2,500.00; c. An assistive technology evaluation to be conducted by a New York State licensed speech pathologist at a rate not to exceed $3,000.00; and it is further
ORDERED that Parent shall provide CSE with a copy of the report(s) within ten (10) days of the date of completion; and it is further
ORDERED that DOE provide to Parent a complete copy of Student’s educational record, including all evaluations and IEPs; and it is further
ORDERED that DOE shall provide a copy of this decision to any person participating in any review of Student’s placement that takes place during the next twelve (12) months from the date of this decision, and at least three (3) days in advance of any such meeting.
Dated: New York, NY
August 30, 2023
/s: John Henry Olthoff/
John Henry Olthoff, Esq.
Impartial Hearing Officer
DOCUMENTATION ENTERED INTO THE RECORD BY DOE
1. DPC 06/16/2023 (6 pages; DOE)
2. FOFD (IH # 2246055) 05/02/2023 (14 pages; DOE)
3. Motion to Dismiss 07/20/2023 (3 pages; DOE)
DOCUMENTATION ENTERED INTO THE RECORD BY PARENT
A. Parent’s Due Process Complaint 06/16/2023 (5 pages)
B. Individualized Education Program 05/22/2023 (26 pages)
C. Educational Evaluation Report 04/24/2023 (2 pages)
D. Classroom Observation 04/24/2023 (2 pages)
E. Student Progress Reports 03/31/2023 (10 pages)
F. Emails re: IEP and Evaluations Various (7 pages)
G. Affidavit of Parent Undated (3 pages)
H. Rate Sheets 01/01/2023 (3 pages)
DOCUMENTATION ENTERED INTO THE RECORD BY IHO
I. PARENT’S MEMORANDUM OF LAW IN 07/20/2023 (5 pages)
OPPOSITION TO THE DISTRICT’S MOTION
TO DISMISS
NOTICE OF RIGHT TO APPEAL
Within forty (40) days 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, pursuant to Section 4404 of the New York 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 twenty-five (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, the 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 (2) 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 are available at http://www.sro.nysed.gov.
Footnotes
[1] “(Ex. ___)” or “(Exs. __)” refers to an exhibit or exhibits entered into the record at the impartial hearing, while “(Tr. __)” refers to the page number in the hearing transcript.
[2] DOE’s documents were in support of its Motion to Dismiss on the basis of res judicata/collateral estoppel, which was submitted via email on July 20, 2023. Parent’s response was admitted as an IHO Exhibit. (Ex. I). (Ex. 3).
[3] “(Ex. _)” and “(Exs. _)” refer to an exhibit or exhibits entered into the record at the impartial hearing, while “(Tr. _)” refers to the page or pages in the hearing transcript.
[4] It is curious that Parent would omit mention of an autism diagnosis in her affidavit testimony, unless he is not a student diagnosed with autism and DOE has mistaken him for another student—regardless, from the record, the status of this diagnosis is unclear and speaks for the need for more comprehensive testing. It is also noted that DOE’s Psychoeducational Evaluation (Ex. C) does not contain any testing for autism.
[5] See, e.g., SRO Appeal No. 21-135.
[6] Parent credibly testified via affidavit that not only was the CSE unaware of the prior FOFD at the time of the IEP meeting, Parent was not informed of any DOE evaluations prior to the May 22, 2023 IEP meeting, and the CSE never provided Parent with email copies of its evaluation as Parent requested. (Ex G).
[7] I seek not to enforce a prior IHO’s FOFD but rather determine that DOE’s failure to follow its mandates contributes to a new FAPE deprivation of Student.