New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 600958 - NYC: 249060

FINDINGS OF FACT AND DECISION

Case Number: 249060

Student’s Name: [REDACTED]

Date of Birth: [REDACTED]

School District: NYC DOE

Hearing Requested by: Parent

Request Date/Date Complaint Filed: 06/20/2023

Date(s) of Hearing: 8/22/2023, 8/25/2023

Actual Record Closed Date: 9/02/2023

Date of Decision: 9/03/2023

Hearing Officer: Paul J. DeSena

INTRODUCTION

This is a decision in a hearing under the Individuals with Disabilities Education Act (“IDEA”) and Section 504 of the Rehabilitation Act of 1973. This case concerns Student, who was [REDACTED] years old in the first grade during the 2022/23 school year and attended a Private School (“Private School”).

(Ex. A, at 1). In the Parent’s Due Process Complaint (“DPC”), the Parent alleged that the Department of Education (“DOE”) 1) failed to respond to Parent’s request for a neuropsychological Independent Educational Evaluation (“IEE”) dated 5/31/23, and 2) denied Student a Free and Appropriate Public Education. (Id, at 2).

The Parent requests an order 1) granting a neuropsychological IEE, 2) finding that DOE’s failure to evaluate constitutes a denial of FAPE, and 3) directing the CSE to reconvene and implement any findings gleaned from the IEE. (Id).

As discussed below, I find that the DOE failed to provide a neuropsychological IEE in this case, and that, more broadly, the DOE’s failure to evaluate the student across all areas of need not only 1) denied the Student a FAPE, but also 2) warrants, under the IHO’s discretion pursuant to 8 NYCRR 200.5(g)(2), an Order directing a complete psychiatric evaluation of the Student.

PROCEDURAL HISTORY

The Parent filed this case on 6/20/2023. (Ex. A, at 1). I was appointed to hear this case on 6/21/2023. I conducted a Pre-Hearing Conference (“PHC”) with the Parties on 7/21/2023. (PHC Tr. at 2). At the Pre-Hearing conference, the parties averred that while the District had, ostensibly, agreed to provide the neuropsychological IEE, the parties could not agree on the proper rate for the service. (PHC Tr., at 2-4). On 8/22/23, the Merits Hearing in this matter was commenced. (See generally, Hearing Tr.). The Parent’s attorney represented the Parent. (Id, at 26). The DOE attorney represented the DOE. (Id, at 26). On that date, the District objected to the admission into the record of the Parent’s exhibits A-D, as they had been exchanged past the 5-day-disclosure deadline. (Id, at 28-29). After a brief colloquy between the parties, the District agreed to waive its objections to the admission of the exhibits if adequate time was allotted for the District to prepare for cross-examination. (Id, at 29-36). The parties subsequently agreed to adjourn the balance of the Merits Hearing to 8/25/23. (Id.)

On 8/25/23, the merits hearing was continued. (See generally, Hearing Tr.). Again, the Parent’s attorney represented the Parent, and the DOE attorney represented the DOE. (Id). At the hearing, the District provided no evidence or witnesses of the proper market rate for the neuropsychological IEE, the rate that it had been offered to the Parent, that the evaluation with which the Parent disagreed was appropriate, or to show that it provided a FAPE. (Hearing Tr. at 49). The DOE waived its opening, rested its case-in-chief without calling any witnesses, but presented a closing statement in which it categorized this proceeding as a “rate case” and that, should the IHO be inclined to order the IEE, a fair market rate be awarded. (Id, at 49, 65).

The Parents argued that the District failed to 1) provide the neuropsychological IEE, or 2) initiate a DPC alleging that the evaluation the Parent had disagreed with was appropriate, and 3) that a neuropsychological IEE should be awarded in the amount of $6,000. (See generally, Hearing Tr.) The Parents introduced exhibits A–D into evidence ^[1]. (Hearing Tr., at 44-46). The Parent’s attorney delivered an opening statement. (Id., at 48-49). The Parent called one witness, the Student’s Father, by affidavit.

(Ex. B). The DOE cross-examined the Parent. (Hearing Tr., at 53-60). The Parent’s attorney briefly redirected the witness, followed by a brief recross-examination and clarifying questions by the IHO. (Id, at 60-62). The Parent’s attorney presented a closing statement. (Id, at 65-66). This order follows.

FINDINGS OF FACT

After a full review of the record generated at hearing, I make the following findings of fact and determinations.

At the start of the 2022/23 school year, the Student was a 6-year-old 1st grader who attended Private School. (Ex. A, at 1). During the school year, the Parents became concerned by the Student’s academic struggles and the fact that he was having difficulty keeping pace with other students, and also by what his mother described as “unusual behaviors,” which included talking to inanimate objects, including food.

(Ex. B, at ¶ 2; Ex. C, at 1). Additionally, the Student’s mother worried that he could be suffering from anxiety. (Ex. C, at 2). The student is bi-lingual speaking both English and Yiddish. (Hearing Tr., at 63).

Ostensibly in response to these concerns, the CSE performed a psychoeducational evaluation of the Student, in Yiddish, on 12/5/22. Ex. C, at 1. The evaluator performed a teacher interview, asked the student to draw a person, and performed the WISC-V IQ test, the Woodcock-Johnson Achievement TestsIV, and Bender Gestalt Figure Drawings. (Id.). The Student performed in the low average-average range on all cognitive and academic assessments. (Id.). As to social/emotional assessment results, the evaluator noted that the Student “became impatient and restless” as the session progressed and that the student’s mother was concerned that the Student’s “unusual behavior,” such as “talking to the food while he is eating,” was somehow related to anxiety. (Ex. C, at 2). The evaluator concluded that these unusual behaviors “may be related to feeling anxious” but that a final determination would be made by the CSE. (Id.). There is no indication in the record that any follow-up examinations or assessments were performed and at no point did the District attempt to defend the appropriateness of the psychoeducational evaluation.

On 5/31/23, the Parent sent a letter to the CSE specifically disagreeing with the psychoeducational evaluation dated 12/5/22 and requesting an IEE. (Ex. D). Parent requested the IEE in order to get an accurate picture of the student’s needs and abilities so that the CSE could set adequate goals and make adequate recommendations for the Student’s educational program. (Ex. B). As to the specific nature of the disagreement, the Parent felt that the evaluation was 1) insufficient in capturing the Student’s “unique needs and abilities” and 2) the whole evaluation process seemed “rushed” and “lacked the comprehensive approach necessary to fully understand” the Student’s challenges. (Id.). The District responded to this request by sending the Parents an authorization for an IEE from a set list of providers but capped the rate for a neuropsychological evaluation at $1,000, which was a lower rate than what, in the Parent’s estimation, was actually necessary to seek a full neuropsychological evaluation. (Hearing Tr., at 55; PHC Transcript, at 2-4). There was no indication provided that the list of providers would work at the rate suggested. To date, the parents have not conducted a neuropsychological IEE of the student.

CONCLUSIONS OF LAW AND ANALYSIS

This case concerns the Parent’s request that the DOE provide the Student with a neuropsychological IEE at public expense at a rate commensurate with the market for such evaluations, that the IHO find that DOE’s failure to evaluate constitutes a denial of FAPE, and an order that the CSE reconvene and implement any findings gleaned from the IEE. (Id.).

Pursuant to the analysis that follows, I find that the DOE failed to provide a neuropsychological IEE in this case, and that, more broadly, the DOE’s failure to evaluate the student across all areas of suspected need not only 1) denied the Student a FAPE, but also 2) warrants, under the IHO’s discretion pursuant to 8 NYCRR 200.5(g)(2), an Order directing a complete psychiatric evaluation of the Student at public expense in addition to a neuropsychological evaluation at public expense.

A. The Student is Entitled to a Neuropsychological IEE at Public Expense at the Rate Requested If a parent 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) (emphasis added)]. If a school district's evaluation is determined to be appropriate by an IHO, the parent may still obtain an IEE, although the district will not be required to provide it at public expense. [See 34 CFR 300.502(b)(3); 8 NYCRR 200.5(g)(1)(v); see also A.H. v. Colonial Sch. Dist., 2019 WL 3021232, at *3 (3d Cir. July 10, 2019)]. Additionally, both federal and State regulations provide that “[a] parent is entitled to only one [IEE] at public expense each time the public agency conducts an evaluation with which the parent disagrees.” {34 CFR 300.502(b)(5); 8 NYCRR 200.5(g)(1)].

Here, it is clear that 1) the District performed a psychoeducational evaluation of the student on 12/5/22, and 2) the parent disagreed with that evaluation, in writing, by letter dated 5/31/23. It is also clear that, to date, the District has neither provided any evaluation of the student nor initiated a DPC to establish that its evaluation was appropriate. Indeed, at the Hearing, the District provided no evidence that its own evaluation of the Student was appropriate.

Of less clarity on this record is the District’s response to the Parent’s disagreement with the evaluation. Colloquy between the parties at the Pre-Hearing Conference suggests that the District sent the Parent of the Student some communication indicating that the District agreed that a neuropsychological evaluation was needed along with a list of providers qualified to perform the evaluation, but that the District capped the rate for the evaluation at $1,000. (Pre-Hearing Tr., at 2-4). Affidavit testimony and cross-examination testimony elicited from the Student’s father at the hearing confirms, in part, this version of events but also suggested that, to the degree the District did send this communication, the parents had yet to find a suitable, bi-lingual English /Yiddish evaluator for the Student. (Hearing Tr., at 63). In any event, the prior colloquy at the pre-hearing conference suggests that $1,000 was an insufficient rate for the evaluation.

At the hearing, neither the District nor Parent’s counsel introduced this communication, alluded to in prior colloquy and testified to by the Parent, into the record. As such, its precise contents cannot be ascertained. Additionally, the District made no effort to 1) justify its own rate for a neuropsychological evaluation of the Student or 2) establish that the list of providers the District supplied, if any, accepted the rate allegedly provided for in the communication (See Application of a Student with a Disability, Appeal No. 19-053, at 50). Critically, the District also presented no evidence as to why the Parent’s request of $6,000 was inappropriate for a neuropsychological evaluation. Indeed, SROs have sustained awards for neuropsychological evaluations for $7,000 [Application of a Student Suspected of Having a Disability, Appeal No. 22-105 (citing, with approval, the testimony of a neuropsychologist stating that $7,000 was “well within the normal market rate in New York City”)] and $5,000 [Application of a Student with a Disability, Appeal No. 19-092]. That said, the Parent also did not introduce any evidence demonstrating the appropriateness of their request for $6,000.

Furthermore, there is no concrete indication of what communication, precisely, the District sent to the Parents. Moreover, there is no indication that the list of providers the District supplied, if any, accepted the rate allegedly provided for in the communication (See Application of a Student with a Disability, Appeal No. 19-053, at 50). Third, there is no indication that the District provided with its approval of the IEE and its list of providers any instructions as to what opportunities, if any, would be given the Parents should they seek to “justify” an IEE at greater cost than the rate provided. (Hearing Tr., at 53-60). Moreover, the District provided no evidence at the Hearing as to the rate it offered to the Parents for a neuropsychological IEE, the reasons the District believed why the capped rate was acceptable, or that the Parent’s suggested rate was unacceptable. (See generally, Hearing Tr.) Finally, the District may not use its own offer to provide an IEE at an insufficient rate (see Application of Student Suspected of Having a Disability, Appeal No. 22-105; Application of a Student with a Disability, Appeal No. 19-092) as a vehicle to subject the Parents to more unnecessary delay and extraneous process. I find that the provision of such an “agreement,” without more on the District’s part, does not meet the standard of “ensuring” that an IEE is provided at public expense. [34 CFR 300.502(b)(2)(i)-(ii); 8 NYCRR 200.5(g)(1)(iv)].

Here, the school District has neither ensured that an IEE was provided a public expense, or initiated an impartial hearing to establish that its evaluation was appropriate and the parent’s does not meet the school district criteria. [34 CFR 300.502(b)(2)(i)-(ii); 8 NYCRR 200.5(g)(1)(iv) (emphasis added)]. Accordingly, I am awarding the neuropsychological IEE at a “reasonable market rate” as requested in the DPC. (Ex. A, at 2). The IEE shall be paid directly to the provider. I am also ordering that upon completion of this neuropsychological IEE, the CSE is to reconvene and consider its findings.

B. The District Failed to Provide the Student with a FAPE for School Year 2022/23 The parent requests a finding that the District’s failure to respond to the Parent’s request for an IEE constitutes a denial of FAPE for the 2022/23 school year. (Ex. A, at 2). A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits [T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 (2d Cir. 2014); R.E. v. New York City Dep't of Educ., 694 F.3d 167, 189-90 (2d Cir. 2012); M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 (2d Cir. 2012); Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005)]. “[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP.” [Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 (2d Cir. 1998), quoting Rowley, 458 U.S. at 206; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 (2d Cir. 2009)]. The Supreme Court has indicated that “[t]he IEP must aim to enable the child to make progress. After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement.” [Endrew F. v. Douglas Cty. Sch.

Dist. RE-1, 580 U.S. 386, 399 (2017)]. Under the IDEA, if procedural violations are alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits. [20 U.S.C. § 1415(f)(3)(E)(ii); 34 CFR 300.513(a)(2); 8 NYCRR 200.5(j)(4)(ii); Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 52526 (2007); R.E., 694 F.3d at 190; M.H., 685 F.3d at 245].

Furthermore, a district must ensure that a student is appropriately assessed in all areas related to the suspected disability, including, where appropriate, social and emotional status. [20 U.S.C. § 1414(b)(3)(B); 34 CFR 300.304(c)(4); 8 NYCRR 200.4(b)(6)(vii)]. An evaluation of a student must be sufficiently comprehensive to identify all of the student's special education and related services needs, whether or not commonly linked to the disability category in which the student has been classified. [34 CFR 300.304(c)(6); 8 NYCRR 200.4(b)(6)(ix) (emphasis added)].

Parent mainly alleges a denial of FAPE based, in part, upon a procedural violation of the IDEA, i.e., the failure to provide an IEE at public expense. Parent also alleges, however, a substantive denial of FAPE. Parent testified that he requested the IEE “to get an accurate picture of [Student’s] current needs and to establish the correct goals and recommendations.” (Ex. B). This allegation is substantially repeated in the Parent’s DPC. (Ex. A). Accordingly, Parent alleges that not only did the District commit procedural violations of the IDEA, but that these procedural violations cumulatively resulted in substantive violations.

Additionally, there is substantial evidence in the record suggesting that the District failed to evaluate the child across all areas of suspected need. (Ex. C). In the psychoeducational evaluation of the student, the evaluator noted that the Student “became impatient and restless” as the session progressed and that the student’s mother was concerned that the Student’s “unusual behavior,” and credited the parent’s concerns about the student’s anxiety (Ex. C, at 2). Despite the conclusion, however, regarding the causal connection between these unusual behaviors and anxious feelings, the evaluator deferred to the CSE for a final determination. (Id.). Again, the record is devoid of evidence that follow-up examinations or assessments were performed, and at no point did the District attempt to defend the appropriateness of the psychoeducational evaluation. (See generally, Hearing Tr.). The evaluator’s assessment that the student’s behavior may be related to anxiety suggests that this is an area of at least suspected need that should have been the subject of a follow-up assessment. That there was at least one area of need not evaluated further bolsters Parent’s allegations that the CSE did not have an adequate picture of the Student’s needs and could not establish the “correct goals and recommendations.” (Ex. C).

Although this record is admittedly thin, given the fact that the District put forth no evidence to either 1) defend its own evaluation of the student as appropriate, or 2) defend its own goals or recommendations of the student, I must sustain Parent’s allegations on this score and find that the District denied the Student a FAPE for the 2022/23 school year. Finally, I find that, because the District never reevaluated the Student for anxiety in light of the initial evaluator’s findings, a full psychiatric evaluation of the Student, pursuant to 8 NYCRR 200.5(g)(2), is warranted.

ORDER

Based upon the above Findings of Fact and Conclusions of Law, it is hereby ordered that:

1. The DOE shall, within 35 days of this Order, assign an individual from its Impartial Hearing Order Implementation Unit (“IHOIU”) to serve as a contact person for the Parent regarding the implementation of this Order. The IHOIU contact person shall provide their name, direct phone number, and email address to the Parent and the Parent’s attorney within 35 days of the date of this Order. The contact person shall respond to any inquiry by the Parent (or her attorney) concerning the implementation of this Order within 2 business days.

2. Within 35 days of the date of the provision of the information listed in item #1, above, to the Parent, a neuropsychological IEE of the student shall be completed at a reasonable market rate with a provider of the parent’s choosing. Within 35 days of receipt by the DOE of an invoice for services rendered, the DOE shall directly fund the provider for the IEE.

3. Within 35 days of the date of the provision of the information listed in item #1, above, to the Parent, a psychiatric IEE of the student shall be completed at a reasonable market rate with a provider of the parent’s choosing. Within 35 days of receipt by the DOE of an invoice for services rendered, the DOE shall directly fund the provider for the IEE.

4. After the IEEs are completed, the CSE shall reconvene within 30 days and consider the findings of these IEEs in crafting goals and recommendations for the student.

SO ORDERED.

DATED: 9/3/2023

Paul J. DeSena

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 – REDACTION IDENTIFICATION PAGE

Term Used In FOFD [REDACTED] Information

Student [REDACTED]

Parent/Guardian [REDACTED]

Parent Attorney/Representative [REDACTED]

District Attorney/Representative [REDACTED]

Private School [REDACTED]

District [REDACTED]

APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD

PARENT EXHIBITS

A. DPC 06/20/2023 (4 pages)

B. Affidavit of Parent [REDACTED] 07/25/2023 (2 pages)

C. Psychoeducational Evaluation Report 12/05/2022 (3 pages)

D. Request for IEE 06/05/2023 (1 page)

DOE EXHIBITS

1. N/A N/A N/A

IHO EXHIBITS

1. N/A N/A N/A

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Footnotes

[1] A detailed list of the admitted exhibits is attached as Appendix B, “Documentation Entered Into the Record,” to this decision.