NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
FINDINGS OF FACT AND DECISION
Case Number: 251538
Student’s Name: REDACTED
OSIS # REDACTED
District of School Location: NYC Dept. of Ed., District #REDACTED
Impartial Hearing Officer: Melanie Goldberg, Esq.
Date of Filing: 7/6/2023
Hearing Requested by: DOE
Date of Hearing: 11/09/2023
Record Close Date: 11/17/2023
Date of Decision: 11/17/2023
Time Sensitive: No
NAMES AND TITLES OF PERSONS WHO APPEARED
NOVEMBER 9, 2023:
For the Student:
redacted (hereinafter referred to as “Parent”)
For the Department of Education:
REDACTED, Esq. (hereinafter referred to as “District’s Representative”)
BACKGROUND AND PROCEDURAL HISTORY
Petitioner is the Department of Education (“DOE” or “District”). On July 6, 2023, Parent requested a neuropsychological evaluation, assistive technology evaluation, speech evaluation, and a vision evaluation. Petitioner requested a hearing in order to defend evaluations completed by the DOE pursuant to the Individuals with Disabilities Education Act (“IDEA”). The undersigned Hearing Officer was appointed to preside over this case on July 13, 2023.
On July 28, 2023, a prehearing conference was held in the above matter virtually via eScribers. After the initial prehearing conference, status conferences were held on 8/7/2023, 8/9/2023, 8/23/2023, 9/6/2023, 9/27/2023, 10/10/2023,10/16/2023, and 10/25/2023 virtually via eScribers. A mediation was held on 8/15/2023. The parties negotiated in an attempt to resolve the matter throughout the process.
On 11/9/2023, both parties appeared virtually for a hearing. The DOE did not submit any evidence or present any witness testimony. Parent submitted exhibits A through I, all admitted into the record without objection, and Parent testified at the hearing. Both DOE and Parent made opening and closing statements.
In the Due Process Complaint (“DPC”) the DOE alleged, among other things, that evaluations conducted by the DOE have addressed Parent’s request for evaluations. The DOE agreed to conduct an assistive technological evaluation. The evaluations at issue in this proceeding are a neuropsychological evaluation, speech evaluation, and vision evaluation.
In light of the foregoing, and as more fully discussed below, I find that DOE did not meet its burden in showing the evaluations that were completed were sufficiently comprehensive. Accordingly, I find Student is entitled to an Independent neuropsychological evaluation, speech evaluation, and vision evaluation.
During the 2023-2024 school year, Student is REDACTED and is classified by the DOE’s Committee on Special Education (“CSE”) as a student with Autism.
LEGAL FRAMEWORK AND ANALYSIS
The IDEA provides that children with disabilities are entitled to a FAPE.[1] A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensively written IEP.[2] 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.[3] To meet its substantive FAPE obligations, a district must offer a student an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” [4]
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.[5] The IDEA confers no individual entitlement to special education or related services upon students who are enrolled by their parents in nonpublic schools.[6] Under State law, however, parents who have privately enrolled their child in a nonpublic school may seek educational “services” for their child with a disability by filing a request in the district where the nonpublic school is located on or before the first day of June preceding the school year for which the request for services is made.[7] Then, the district of location's CSE must review the request and “develop an [IESP] for the student based on the student's individual needs in the same manner and with the same contents as an [IEP].” [8]
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.”[9] Under New York State regulations, an IHO may order an independent evaluation under their own authority. [10]
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.[11] 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 challenge the government without a realistic opportunity to access the necessary evidence, or without an expert with the firepower to match the opposition.”[12] The IDEA and the implementing regulations grant the student’s parents the right to (a) disagree with the school’s initial and triennial evaluations and (b) receive an IEE at public expense, the results of which must be considered when the school makes decisions relating to the student’s education.[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]
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. [15]
Burden
School districts have 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 a 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.[16] In regard to IEEs, the DOE has the burden to establish “that its evaluation is appropriate.” [17]
In this case, the DOE did not submit any evidence or call any witnesses to show that its evaluations were appropriate. In limited cases, documents alone may be sufficient to prove the appropriateness of the CSE’s recommendations.[18] However, in this case the IESP alone, submitted as a Parent’s exhibit, is insufficient to establish that evaluations completed by the DOE were appropriate. The Parent does not have the burden of proof in this case, however, the record establishes that evaluations are necessary neuropsychological evaluation, speech evaluation, and vision evaluation to fully evaluate Student’s needs. Neuropsychological Evaluation The DOE argued a neuropsychological evaluation was not necessary because Student had a psychoeducational evaluation on March 1, 2023, Student’s teacher provided a progress report and participated in the IESP meeting on April 26, 2023, and a classroom observation was conducted.[19] Parent argued the psychoeducation evaluation is not comprehensive enough to determine student’s needs and that a neuropsychological evaluation is necessary.
Student is classified as a student with Autism. Parent submitted Student’s Autism Evaluation into evidence.[20] Parent also submitted MAP testing results, Lexile Reading Grade Conversion Chart, and an email from the Clinical Director that examined Student detailing areas of Student’s needs. [21]
Parent testified Student is in fourth grade but reads at between a first and second grade level.[22] Parent argued it is unclear whether Student has other developmental issues that have not been fully diagnosed.[23] Parent testified it is unclear whether Student’s reading challenges are caused by neurological issues or by vision issues.[24] Parent testified Student has difficulties with classwork, socialization, prioritization of work, and skills that require working memory which is an area that student has a deficit. [25]
The DOE did not establish a psychoeducational evaluation and social history are appropriate or comprehensive enough to meet Student’s needs. As a result, I find student is entitled to a Neuropsychological Evaluation. Speech Evaluation The DOE argued a speech evaluation was not necessary because a speech evaluation was conducted on March 29, 2023, Student’s teacher provided a progress report and participated in the IESP meeting on April 26, 2023, and a classroom observation was conducted. [26]
Student’s speech and language evaluation shows Student has “difficulty with decoding, comprehension, and higher order language skills (i.e., drawing conclusions, inferencing, predicting, figurative language, cause and effect, sequencing, summarizing, narratives.)” [27]
In order to demonstrate a more comprehensive speech-language evaluation was necessary, Parent entered into evidence an email from a Clinical Director and Speech-Language Pathologist that stated the assessment done by the DOE “looked specifically at behavior, articulation, voice, audition (hearing), fluency and language skills.”[28] However, “executive functions, such as working memory, attention and organizing information and problem solving, as well as social-pragmatic skills and deeper level literacy markers were not evaluated.[29] In order to “effectively assess [Student’s] foundation skills necessary for success in school,” a comprehensive speech and language evaluation is required.” [30]
The DOE failed to establish the evaluations DOE completed are appropriate to meet Student’s needs. As a result, I find student is entitled to a Speech-language Evaluation. Vision Evaluation The DOE argued Student is not eligible for educational vision services because the DOE’s “criteria for services starts at 20/70 in the better eye with correction, 60 degrees of field loss (or worse) or a severe visual condition that merits the service. [Student’s] visual acuity is within normal limits and there is no visual condition that is severe enough for services. Vision therapy cannot be added to [Student’s] IESP since it is medical in nature.” [31]
Parent testified Student is visibly tired from reading a book and cannot track things properly.[32] Parent testified Student’s reading level is below grade level, and Parent is seeking more information on the cause.[33] Student’s Eye Examination shows that student has Convergence Insufficiency and Deficient Saccadic eye movements.[34] The Eye Examination recommends among other things that student receive Vision Therapy once a week. 35
The DOE did not submit any evidence or call any witnesses to explain its position further or show that the Eye Examination was taken into consideration when creating the IESP. The DOE did not explain how the services recommended in the IESP are “designed to meet a student’s unique needs” without further examination. [36]
The DOE failed to establish the evaluations the DOE completed are appropriate to meet Student’s needs. As a result, I find student is entitled to a Vision Evaluation.
Relief
The DOE did not meet its burden in showing the evaluations that were completed were appropriate to evaluate student in all suspected areas of need. Therefore, the district shall fund these evaluations, at reasonable market rates paid by the implementation unit of District within the last six months, by a provider of the parent’s choosing within[35] days of the date of this order.
ORDER
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS HEREBY ORDERED THAT:
(1) DOE fund a Neuropsychological evaluation at reasonable market rates paid by the implementation unit of District within the last six months, by a licensed or certified provider of the parent’s choosing,
(2) DOE fund a speech evaluation at reasonable market rates paid by the implementation unit of District within the last six months, by a licensed or certified provider of the parent’s choosing ate and,
(3) DOE fund a vision evaluation at reasonable market rates paid by the implementation unit of District within the last six months, by a licensed or certified provider of the parent’s choosing.
SO ORDERED.
Dated: November 17, 2023 (Signed Electronically: MG)
Impartial Hearing Officer
Melanie Goldberg, Esq.
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.
DOE’s Exhibits
None
Parent’s Exhibits
EXHIBIT DATE NAME PAGES
A. Autism Evaluation (Password-REDACTED) 12/6/2022 21 pages
B. Eye Examination 4/13/2023 3 pages
C. Email from redacted Recommendation additional evaluations 5/30/2023 2 pages
D. Prior Written Notice for Re Evaluation from CSE 6/20/2023 2 pages
E. Speech and Language Report by redacted 8/30/2023 2 pages
F. IESP 10/2/2023 15 pages
G. Speech, Language and OT Report redacted 10/26/2023 4 pages
H. Fall 2023 MAP Testing Results 11/2/2023 5 pages
I. Lexile Reading Grade Conversion Chart 11/3/2023 1 page
IHO EXHIBITS
EXHIBIT DATE NAME PAGES
I. Prehearing Summary and Order APPENDIX A- REDACTION IDENTIFICATION PAGE 10/25/2023 3 pages
Redacted Information Term Used In FOFD
REDACTED Student
REDACTED Parent
REDACTED District or DOE
Footnotes
[1] See 20 U.S.C. § 1400(d)(1)(A).
[2] 34 C.F.R. § 300.13.
[3] Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).
[4] Endrew F. v. Douglas County Sch. Dist. RE-1, 137 S.Ct. 988, 999 (2017).
[5] 20 U.S.C. § 1412(a)(l)(A); Educ. Law§ 4402(2)(a), (b)(2).
[6] see 34 CFR 300.137(a).
[7] Educ. Law § 3602-c(2).
[8] Educ. Law§ 3602-c(2)(b)(l).
[9] 8 NYCRR § 200.1(z).
[10] 8 NYCRR § 200.5(j)(3)(viii); 8 NYCRR § 200.5(g)(2).
[11] 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).
[12] 546 U.S. 49, 60-61 (2005).
[13] D.S. v. Trumbull, 975 F.3d 156.
[14] D.S. v. Trumbull Bd. of Educ., 975 F.3d 152, 165 (2d Cir. 2020).
[15] 34 C.F.R. § 300.502(b)(2)(i) -(ii); 8 NYCRR § 200.5(g)(1)(iv).
[16] NYS Educ. Law § 4404(1)(c).
[17] 34 C.F.R. § 300.502(b)(2)(i) -(ii); 8 NYCRR § 200.5(g)(1)(iv).
[18] See, L. O. v. New York City Dep’t of Educ., 67 IDELR 225 (2d Cir. 2016); SRO Appeal Nos. 23-090 and 19-054.
[19] P. EX. D.
[20] P. Ex. A.
[21] P. Ex’s H, I, and C.
[22] This decision was written before a transcript was available.
[23] Tr.
[24] Tr.
[25] Tr.
[26] P. Ex. D.
[27] P. Ex. E.
[28] P. Ex. C
[29] P. Ex. C.
[30] P. Ex. C.
[31] P. EX. D.
[32] Tr.
[33] Tr.
[34] P. Ex. B.
[35] Id.
[36] 34 C.F.R. § 300.13.