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CASE NUMBER: 601440- NYC: 249364
FINDINGS OF FACT AND DECISION
Case Number: 249364
Student’s Name: [REDACTED]
Date of Birth: [REDACTED]
School District: NYC Department of Education, District 27
Hearing Requested by: [REDACTED] (“Parent”)
Request Date/Date Complaint Filed: 06/28/2023
Date of Hearing: 08/04/2023
Actual Record Closed Date: 08/21/2023
Date of Decision: 08/22/2023
Date of Distribution (if Different than Decision Date): 08/23/2023
Hearing Officer: Edward Perkins, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED
[REDACTED], Esq., Attorney — Student
[REDACTED] — Parents
[REDACTED], Esq., Attorney — DOE
INTRODUCTION
This is a decision in a hearing under the Individuals with Disabilities Education Act (“IDEA”). The Parents filed this case on June 28, 2023. In the Due Process Complaint (“DPC”), the Parents allege that the Department of Education (“DOE”) failed to offer the student a free appropriate public education (“FAPE”) for the 2022-2023 school year. Ex. A. Specifically, Parent contends that the DOE failed to appropriately respond to Parent’s Independent Educational Evaluation (“IEE”) request, and failed to appropriately evaluate Student. Id.
By way of relief, Parents seek an award of funding for an independent Speech & Language (“SL”) evaluation, an independent Occupational Therapy (“OT”) evaluation, an independent Assistive Technology (“AT”) evaluation, an independent Physical Therapy (“PT”) evaluation, an independent Functional Behavioral Assessment (“FBA”), and an independent Behavioral Intervention Plan (“BIP”).
Id. Considering the foregoing and as more fully discussed below, I find that (a) the DOE failed to meet its burden, and (b) Parent’s requested relief is appropriate.
PROCEDURAL HISTORY
On June 29, 2023, I was appointed as IHO in this matter. On August 04, 2023, the parties appeared for a due process hearing on the merits. At the hearing, the DOE presented four exhibits, but did not present any witnesses or testimony. Tr. at 16,41.[1] Parent presented eleven exhibits, and also declined to present any witnesses or testimony. Tr. at 26, 41. Following the conclusion of the hearing, parties submitted written closing briefs by the agreed-upon deadline. Tr. at 42-43.
FINDINGS OF FACT
I hereby make the following findings of fact and determinations.
Student is a [REDACTED] child residing in New York City with a DOE disability classification of Other Health Impairment. Ex. C.
In preparation for Student’s ‘turning five’ Individualized Education Program (“IEP”) meeting, the DOE conducted a social history update and classroom observation of Student, but did not conduct any additional evaluations. Tr. at 29, 33. In January of 2022, Parent had Student evaluated by a licensed Neuropsychologist, who made a series of recommendations for Student including SL therapy, social skills remediation, OT, behavioral interventions, specific recommendations regarding classroom placement, specific recommendations regarding educational environment, parent training, and updated PT and OT evaluations. Ex. D. At the IEP meeting, the DOE recommended related services for Student including OT, PT, and SL. Ex. C. On May 4, 2023, Parent wrote to the DOE, expressing disagreement with the DOE’s evaluations, including specifically noting that she did not believe the DOE had comprehensively evaluated Student. Ex. E. In that letter, Parent requested an IEE. Id. The DOE failed to respond. See Record Generally.
CONCLUSIONS OF LAW AND ANALYSIS
Burden
School districts have the burden of proof, including the burden of persuasion and burden of production, in IDEA due process hearings, except in circumstances not present here. NY Educ. Law § 4404(1)(c); see R.E. v. New York City Dep’t of Educ., 694 F.3d 167, 184-85 (2d Cir. 2012); C.F. v. New York City Dep’t of Educ., 746 F.3d 68, 76 (2d Cir. 2014).
Provision of FAPE and Dual Enrollment
The IDEA provides that children with disabilities are entitled to a FAPE. 20 U.S.C. § 1400 (d)(1)(A). A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written IEP. 34 C.F.R. § 300.13. A school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through the IDEA’s procedures and is reasonably calculated to enable the student to receive educational benefits. Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). In order to meet its substantive FAPE obligations, a district must prove that it offered the student in question an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew
F. v. Douglas County Sch. Dist. RE-1, 137 S.Ct. 988, 999 (2017).
A board of education must offer a FAPE to each student with a disability residing in the school district who requires special education services or programs. 20 U.S.C. § 1412(a)(l)(A); NY Educ. Law § 4402(2)(a), (b)(2). The IDEA confers no individual entitlement to special education or related services upon students who are enrolled by their parents in nonpublic schools. See 34 C.F.R. § 300.137(a). Under New York State law, however, parents who have privately enrolled their child in a nonpublic school may seek educational “services” for their child with a disability. NY Educ. Law § 3602-c(2)(b)(l). The CSE must “assure that special education programs and services are made available to students with disabilities attending nonpublic schools located within the school district on an equitable basis, as compared to special education programs and services provided to other students with disabilities attending public or nonpublic schools located within the school district.” NY Educ. Law § 3602-c(2)(b)(1). Additionally, Section 3602c provides that a parent may seek review of the recommendation of the CSE pursuant to the impartial hearing and State-level review procedures pursuant to NY Education Law § 4404.
As to a provision of FAPE, the DOE failed to meet its burden at hearing. Rather, the DOE Representative indicated on the record that the DOE was resting on exhibits, without submitting the testimony of any witnesses. Tr. at 41. According to the Supreme Court, “a reviewing court may fairly expect [public] authorities to be able to offer a cogent and responsive explanation for their decisions” that shows the DOE’s actions were reasonably calculated to enable the child to make progress appropriate in light of their circumstances. Endrew F., 386, 404 (emphasis added). Here, the DOE did not call any witnesses or present any exhibits to support its decisions. Tr. at 41. While the DOE entered four documents into evidence, these documents alone, without supporting testimony, could not rebut the Parent’s numerous allegations.[2] Further, in his closing brief DOE counsel made no effort to demonstrate how these documents constituted a FAPE. As the record does not contain a single sentence of testimony supporting the DOE’s burden of proving that it appropriately evaluated Student, I am constrained to find that the DOE failed to provide Student a FAPE.
IEEs
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).
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 1989). For example, a school district may not 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). 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 NYCRR § 200.5(g)(1)(iii).
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). Finally, under the Part 200 regulations, the DOE may not impose additional conditions or timelines related to obtaining an independent educational evaluation at public expense. 8 N.Y.C.R.R. § 200.5(g)(1)(ii).
In this case, Student is eligible for an IEE. Student was entitled to “equitable services” inclusive of appropriate special education evaluations. NY Educ. Law § 3602-c(2)(b)(l). Parent wrote to the DOE on May 04, 2023, noting her disagreement with Student’s turning-five evaluation, and requesting funding for an IEE.[3] Ex. E. In that letter, Parent specified that she was disagreeing because the DOE’s evaluations were not sufficiently comprehensive. Id. The U.S. Department of Education has interpreted the law to find that a parent can obtain an independent evaluation when a District has failed to evaluate the specific area of the child’s needs. See Letter to Baus Office of Special Education Programs, 65 IDELR 81 (February 23, 2015). Guidance from 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; see Letter to Carroll, 68 IDELR 279 (OSEP 2016).[4] Parent disagreed with the DOE’s evaluations because the DOE failed to evaluate certain areas of Student’s needs, and defined those specific areas in her letter by proposing specific evaluations. See Ex. E. Therefore, I find that Parent clearly met the requirement that she express disagreement with an evaluation conducted by the DOE.
Following Parent’s notice of her disagreement with a DOE evaluation, the DOE had two legal options, neither of which it exercised. The DOE did not initiate an impartial hearing to establish that its recent evaluations were appropriate, nor did it take the necessary action to ensure that the Parent’s requested IEE was provided at public expense. Moreover, at the hearing, it provided no testimony to defend its evaluations. Tr. at 41. Further, the record establishes that Parent waited nearly two months for the DOE to respond to her request for an IEE before filing a DPC. Ex. A, Ex. E. In fact, the Parent notified the DOE of her request for an IEE a second time in the DPC, and there is no evidence that the DOE responded at any point. See Ex. A, see also Record Generally. In its closing brief, the DOE argues that it is not required to file a DPC to defend its evaluations, but the regulations expressly state that the DOE must without unnecessary delay initiate a hearing to defend its evaluations. 34 C.F.R. § 300.502(b)(2)(i) -(ii); 8 NYCRR § 200.5(g)(1)(iv). As the DOE took no action for nearly two months, I must find that the DOE did not fulfill its legal obligation to initiate a hearing without unnecessary delay. I reject, as contrary to the explicit language of the regulations, the DOE’s argument that it may wait for a parent to file a DPC and then defend its evaluations. See, e.g., Application of a Student with a Disability, Appeal No. 19-094, at p. 7 (S.R.O. Nov. 20, 2019) (“[D]istrict was required to proceed and defend its own evaluation [within the context of parent’s filed DPC] . . . after the conclusion of the 30-day resolution period if it did not reach a decision to grant the parent's request for a publicly funded IEE by the conclusion of the resolution period.”). In any event, as the DOE made no effort to demonstrate the thoroughness of its evaluations or to defend their appropriateness, it failed to meet its burdens even under the rule it posits. Rather than fulfil its obligation to defend its evaluation, the DOE simply submitted four documents into the record, without any supporting testimony, and did not make any arguments regarding the appropriateness of the DOE evaluations in its closing brief.
The DOE also has the burden of proof to demonstrate that the Parent requested evaluations at an unreasonable rate or through inappropriately credentialed or qualified evaluators. The Parent provided evidence of the proposed evaluators’ qualifications as well as their rates. Ex. F, G, H, I, J, K. The DOE presented no evidence or testimony to demonstrate that the Parent requested inappropriate evaluators or the unreasonableness of the requested evaluators’ rates. See Record generally. The DOE failed to make any objection to the Parent’s requested evaluators or their rates. Id. As such, the requested evaluators and their rates should be deemed appropriate. The Parent is therefore entitled to the requested IEEs.
Equitable Grounds for Relief
The Supreme Court has emphasized that relief under the IDEA depends, in part, on “equitable considerations.” See Sch. Comm. of Town of Burlington, Mass. v. Dept. of Educ. of Mass., 471 U.S. 359, 374 (1985); Carter, 510 U.S. at 15-16. When a school district denies a child a FAPE, the courts have “broad discretion” to fashion an appropriate remedy.” Boose v District of Columbia, 786 F. 3d 1054, 1056 (D.C. Cir. 2015), citing Carter, 510 U.S. at 15-16. In actions brought under the IDEA alleging a denial of FAPE, “the court shall grant such relief as the court determines is appropriate,” limited only by the restriction that “the relief is to be appropriate in light of the purpose of the Act.” Doe v. East Lyme Bd. of Educ., 790 F.3d 454 (2d Cir. 2015).
An appropriate equitable remedy for a failure to properly evaluate a student in all areas may be an order directing the DOE to fund any additional necessary evaluations. See Burlington, Mass. v. Dep't of Educ. of Mass., 471 U.S. 369, 370–71 (1985) (concluding that the equities require a school district to belatedly pay expenses it should have paid all along and would have borne in the first instance had it fulfilled its legal obligations to the student). See also, SRO No. 20-049; see also SRO No. 20-147 (upholding an IHO’s equitable award of reimbursement for the costs of a privately obtained neuropsychological evaluation). [5]
Under New York law, the district has the burden of proof in an administrative hearing regarding the appropriateness of an equitable award, but the parent must identify the specific remedy they are seeking so that the IHO can craft an appropriate remedy for the years it is claimed the student was denied a FAPE. Education Law § 4404[1][c]; See JKG v. Wissahickon Sch. Dist., 2021 U.S. Dist. LEXIS 55235 *25 (E.D. Pa. 2021).
Where the DOE fails to meet its burden of proving it provided a FAPE, as is the case here, it is “nevertheless incumbent on the district to develop the hearing record to establish the appropriate amount of relief needed to remediate the district's failure.” Application of the New York City Department of Education, Appeal No. 14-014 (SRO NY 2014). Further, it is not persuasive for the DOE to simply fault the parent’s request for relief without also explaining its own view of what type of compensatory education relief would be appropriate to remediate the district's failure to provide the student with a
FAPE. Id.
As the DOE has failed to present any evidence or testimony regarding the appropriate relief, I find that the DOE has failed to establish the appropriate amount of relief to remediate its failure to provide Student with a FAPE for the school years in question. Tr. at 41. Further, Parent submitted evidence that does support the requested relief. Ex. D-15. I find that the relief requested by Parent is appropriate to remedy the DOE’s denial of FAPE, and the requested relief is reasonably calculated to provide Student with the evaluations (and their benefits) that he would likely have obtained but for the DOE’s failure to provide a FAPE.
Therefore, I find no issue with the reasonableness of the request for independent S/L evaluation, independent OT evaluation, independent AT evaluation, independent PT evaluation, independent FBA, and independent BIP, to be provided by qualified providers of Parent’s choosing, at Parent’s requested rates. Further, there is no evidence in the record which suggests that some other form or quantity of relief would better redress the harm caused by the DOE’s failure to provide Student with a FAPE.
Even if a parent establishes a right to relief under the IDEA, courts retain discretion to reduce the amount of an award if the equities so warrant. Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 246-47, 129 S. Ct. 2484, 174 L. Ed. 2d 168 (2009). In making that equitable determination, a hearing officer may consider many factors, including, inter alia, whether there was any fraud or collusion in any other respect. E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 (2d Cir. 2014). Here, the DOE failed to raise any equitable issues which would be a barrier to the requested relief. Further, the record shows that Parent provided adequate notice to the DOE, signed all necessary consent forms, participated in IEP meetings, and in general made a good faith effort to work with the DOE. See, e.g., Ex. 4, Ex. C-30, Ex. E, See also Record Generally . Thus, all equitable considerations support the requested relief.
For the reasons above, I find that the record supports Parent’s requested relief, both as IEEs and on equitable grounds.
ORDER
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS HEREBY
ORDERED THAT:
(1) The DOE shall fund a Physical Therapy Evaluation of Student, at a rate not to exceed $1500, to be conducted by a qualified evaluator of Parent’s choosing. The DOE shall pay the evaluator within 30 days of the submission of an invoice for the evaluation, or reimburse Parent within 30 days of the submission of proof of payment if Parent has paid out-of-pocket.
(2) The DOE shall fund an Occupational Therapy Evaluation of Student, at a rate not to exceed $2200, to be conducted by a qualified evaluator of Parent’s choosing. The DOE shall pay the evaluator within 30 days of the submission of an invoice for the evaluation, or reimburse Parent within 30 days of the submission of proof of payment if Parent has paid out-of-pocket.
(3) The DOE shall fund an Assistive Technology Evaluation of Student, at a rate not to exceed $3000, to be conducted by a qualified evaluator of Parent’s choosing. The DOE shall pay the evaluator within 30 days of the submission of an invoice for the evaluation, or reimburse Parent within 30 days of the submission of proof of payment if Parent has paid out-of-pocket.
(4) The DOE shall fund a Speech and Language Evaluation of Student, at a rate not to exceed $2500, to be conducted by a qualified evaluator of Parent’s choosing. The DOE shall pay the evaluator within 30 days of the submission of an invoice for the evaluation, or reimburse Parent within 30 days of the submission of proof of payment if Parent has paid out-of-pocket.
(5) The DOE shall fund a Functional Behavioral Assessment of Student, at a rate not to exceed $4,125, to be conducted by a qualified evaluator of Parent’s choosing. The DOE shall pay the evaluator within 30 days of the submission of an invoice for the assessment, or reimburse Parent within 30 days of the submission of proof of payment if Parent has paid out-of-pocket.
(6) The DOE shall fund the development of a Behavioral Intervention Plan for Student, at a rate not to exceed $1,375, to be developed by a qualified provider of Parent’s choosing in conjunction with the Functional Behavioral Assessment. The DOE shall pay the provider within 30 days of the submission of an invoice for the development of the plan, or reimburse Parent within 30 days of the submission of proof of payment if Parent has paid out-of-pocket.
(7) The DOE shall provide a copy of the aforementioned evaluations to each member of the IEP team or IESP team no fewer than 3 business days before the next meeting. Each DOE member of the team shall be required to read the evaluations in advance of the meeting.
SO ORDERED.
DATED: 08/22/2023
//s// Edward Perkins
Edward Perkins, 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 – REDACTION IDENTIFICATION PAGE
APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD
PARENT EXHIBITS
A. Parent’s Hearing Request 6/27/2023 (9 pages)
B. Prior Written Notice 5/12/2023 (4 pages)
C. Individualized Education Program 5/04/2023 (31 pages)
D. Neuropsychological Evaluation 01/2023 (30 pages)
E. Independent Educational Evaluation Request 05/04/2023 (3 pages)
F. Resume of [REDACTED] Undated (5 pages)
G. Resume of [REDACTED] Undated (3 pages)
H. Resume of [REDACTED] Undated (2 pages)
I. Fee Schedule for [REDACTED] Undated (2 pages)
J. Fee Schedule [REDACTED] Undated (1 page)
K. Fee Schedule [REDACTED] Undated (2 pages)
DOE EXHIBITS
1. Evaluation Packet 11/03/2020-11/26/2020 (66 pages)
2. Assessment Planning Undated (1 page)
3. Social History Update 02/06/2023 (2 pages)
4. Classroom Observation May 2021 (2 pages)
IHO EXHIBITS
I. N/A N/A N/A
Footnotes
[1] The hearing transcript is cited to using the following format: Tr. at xx (with ‘xx’ representing the page number).
[2] During the hearing, Parent objected to two DOE’s exhibits that appear to include an evaluation packet from 2020 (Ex. 1), and a classroom observation from 2021 (Ex. 3), arguing that those exhibits were irrelevant as the subject of this DPC was Parent’s request for an IEE due to disagreement with the turning-five evaluation, which was done in 2023. Tr. at 20. While there may be some merit to this argument, I admitted the exhibits into evidence for what they were worth as DOE counsel maintained at the hearing that these were relevant documents. Tr. at 21. As discussed further below, whether these documents are part of the record or not does not change my decision as it rests on Parent’s disagreement with another evaluation, a fact that is not in dispute,
[3] The State Review Officer has recently issued guidance suggesting that a Parent cannot raise a disagreement with a DOE evaluation and request an IEE for the first time in a DPC. See SRO Decision 23-081. However, that decision is clearly distinguishable from the facts at hand, where Parent wrote to the DOE requesting an IEE more than a month prior to filing her DPC. See Ex. A, Ex. E.
[4] Further, I do not credit the argument that the DOE should somehow be shielded from liability because it failed to conduct all the necessary evaluations, thereby leaving Parent without the ability to challenge specific evaluations because they were not conducted. That appears to be a ‘gotcha’ argument that would simultaneously reward the DOE for its failures and would leave parents with no recourse, which would be an unequitable outcome. I find that under Baus, a Parent’s challenge to the comprehensiveness of a slate of evaluations, and contention that additional evaluations should have been conducted, suffices.
[5] The DOE argues that an IHO is only empowered to order an IEE in furtherance of a hearing. In support, the DOE has cited two SRO decisions, SRO 21-021 and SRO 17-089. However, these decisions are not controlling and simply offer guidance. Moreover, here, the requested IEEs are in furtherance of a hearing, although not this one specifically. Parent has filed a subsequent DPC, alleging different violations of FAPE for the school year at issue, and seeking additional forms of relief. is reasonably foreseeable that the requested evaluations would further the inquiry in that proceeding. Additionally, they might reveal new information to Parent, which could form the basis for new allegations. Further, as a matter of judicial efficiency, the requested evaluations may further the inquiry in that proceeding regarding both the provision or denial of FAPE and what relief might be appropriate. Finally, as discussed above, I am empowered by the Second Circuit to award the requested relief both as an Independent Educational Evaluation and under my broad discretionary authority to order equitable relief to remedy a DOE denial of FAPE. See Doe, 790 F.3d 454 (2d Cir. 2015), Dep't of Educ. of Mass., 471 U.S. 369, 370–71 (1985), See also Trumbull, 975 F.3d 152, 158 (2d Cir. 2020).