Impartial Hearing Decision

CASE NUMBER: 262997

FINDINGS OF FACT AND DECISION

Case Number: 262997

Student’s Name: REDACTED

School District: New York City Department of Education Hearing Requested by: Parent Request Date/Date Complaint Filed: September 28, 2023

Date(s) of Hearing: October 30, 2023

November 3, 2023

Actual Record Closed Date: November 3, 2023

Date of Decision: November 3, 2023

Date of Distribution if Different than Decision Date: N/A Hearing Officer: Jean Marie Brescia, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

October 30, 2023

For the Student:

REDACTED, Parent Student

For the Department of Education:

REDACTED, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

November 3, 2023

For the Student:

REDACTED, Parent Student

For the Department of Education:

REDACTED, Esq.

INTRODUCTION AND PROCEDURAL HISTORY

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) on Parent’s Due Process Complaint (“DPC”) filed on or about September 28, 2023. Ex. A.^[1] On October 6, 2023, I was appointed by the New York City Department of Education (the “Department”) to hear this matter. REDACTED’s Parent requested an independent educational evaluation at public expense (“IEE”) and, in support of this request, alleged that the Department’s evaluation of REDACTED, upon which the Department relied during its last IEP meeting for REDACTED, is an outdated and inadequate preschool evaluation. In addition, REDACTED’s Parent requests speech-language and physical therapy evaluations. REDACTED’s Parent also alleged procedural and substantive challenges to the Department’s last IEP for REDACTED, developed on June 22, 2023. IHO Ex. I. I conducted a prehearing conference on October 30, 2023. The Department appeared by counsel, and Parent appeared pro se. At the prehearing conference, Parent explained her concerns with the preschool evaluation, mainly that this evaluation was conducted when REDACTED was in preschool and that REDACTED is now in REDACTED grade and no longer reflects REDACTED’s needs. She explained that she was requesting payment for an IEE to be performed by the REDACTED, described the type and costs of such an evaluation, and stated that she wished Department personnel to conduct the speech-language and physical therapy evaluations. Procedural and evidentiary matters were discussed; Department counsel waived the “five-day” disclosure rule with respect to the documents Parent intended to disclose and offer in evidence. The Department did not raise any affirmative defenses to Parent’s DPC.^[2] The hearing was scheduled for November 3.

On November 3, the Department appeared by counsel, and Parent appeared pro se. Parent’s exhibits A through D were admitted in evidence. The Department rested its case without offering witness testimony or documentary evidence. Parent testified and was cross-examined by Department’s counsel.

At the hearing, on the record, Parent withdrew, without prejudice, the claims set forth in the DPC which relate to the development and the substance of the June 22, 2023 IEP. Parent expressed her desire to obtain the above-referenced evaluations, meet with Department personnel to discuss those evaluations, and work with Department personnel to develop a new IEP for REDACTED, rather than pursue the impartial hearing process at this time to challenge the existing IEP. As a result, the hearing proceeded only with respect to, and this Decision relates only to, Parent’s requests for an IEE at public expense and a speech-language evaluation and a physical therapy evaluation to be conducted by Department personnel. All other claims set forth in the DPC are withdrawn without prejudice.

After the conclusion of the hearing, and for the completeness of the record, I admitted in evidence Parent’s DPC with the June 22 IEP, which Parent had annexed to the DPC. IHO Exs. I, II. The Department was on notice of these documents because they were filed with the Department to initiate this proceeding and they were discussed at the prehearing conference and at the hearing. There were no extensions of the compliance date.

The record closed on November 3, 2023.

JURISDICTION

The due process hearing was held, and a decision in this matter is now rendered pursuant to the Individuals with Disabilities Education Act (hereinafter, “IDEA”), 20 U.S.C. §§ 1400 et seq., and its implementing regulations, 34 C.F.R. Part 300, and New York State Education Law § 4404, and its implementing regulations, 8 N.Y.C.R.R. Part 200.

FINDINGS OF FACT

1. REDACTED is REDACTED-year old boy who is eligible for special education and services under the IDEA and whose disability, for the purposes of the IDEA, is classified as other health impairment. IHO Ex. II at 1.

2. REDACTED has been diagnosed with REDACTED and struggles with receptive, expressive and pragmatic language, attention, phonemic awareness, decoding, reading fluency, writing, math computation and concepts, engaging in inattentive behaviors, focusing, following directions, sensory processing, and organization. IHO Ex. II at 1-18; Exs. C, D. He has a history of fine and gross motor delays. Ex. A.

3. In October 2018, when REDACTED was three years of age, he was evaluated to determine his eligibility for special education and related services as a preschooler with a disability.

Ex. A.

4. The preschool evaluation was the last evaluation that the Department conducted (or caused to be conducted) for REDACTED. Parent testimony, 11/3.

5. On June 22, 2023, the Department conducted an IEP meeting to develop an IEP for REDACTED. IHO Ex II.

6. REDACTED is now a REDACTED grade student in an ICT class in a Department mainstream school with SETSS (two periods per week). He receives the related services of speech-language therapy, occupational therapy and counseling and has a 1:1 full-time paraprofessional for “Behavior Support.” IHO Ex. II at 10, 32-33, 37.

7. REDACTED demonstrates excellent school attendance. IHO Ex. II at 1; Ex. C.

8. The REDACTED informed REDACTED’s parent in writing (by letter dated October 31) that a licensed neuropsychologist at the REDACTED was available to perform a neuropsychological evaluation of REDACTED; the charge would total $7,000.00. Ex. B.

9. REDACTED’s parent has a tentative appointment at REDACTED for January 22, 2023 to commence the evaluation; she was informed by personnel at REDACTED that: (a) the evaluation would be conducted in-person at REDACTED, (b) would consist of approximately five sessions (a parent interview, three sessions of testing with each session approximately three hours, and a final meeting with parent), and (c) would include review of extensive documentation by the neuropsychologist (for example, parent and teacher rating forms, IEPs). See Parent testimony, 11/3.

10. REDACTED’s parent expressed her disagreement with the preschool evaluation in writing in the DPC. IHO Ex. I; see also Parent testimony, 11/3.

11. In response to the DPC, the Department did not offer an IEE to REDACTED or file for an impartial hearing to challenge REDACTED’s parent’s request for an IEE.

12. The Department did not defend its preschool evaluation at the hearing.

CONCLUSIONS OF LAW

The central purposes of the IDEA are to ensure: (1) that students with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living and (2) that the rights of students with disabilities and their parents are protected. 20 U.S.C. §1400(d)(1)(A); Schaffer v. Weast, 546 U.S. 49, 51 (2005); Board of Education v. Rowley, 458 U.S. 176, 179-181 (1982).

The IDEA requires school districts to evaluate and reevaluate a student using “a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information, including information provided by the parent, that may assist in” formulating an IEP for the student. 20 U.S.C. § 1414(b)(2)(A). The IDEA requires that an evaluation of a student “be comprehensive.” D.S. v. Trumbull Board of Education, 975 F.3d 152, 162-163 (2d Cir. 2020) (“Trumbull”). A district must, among many other requirements, ensure that a student “is assessed in all areas of suspected disability,” that “assessment tools and strategies [are employed] that provide relevant information that directly assists persons in determining the educational needs” of the student (20 U.S.C. §§ 1414(b)(3)(B) & (C); 8 N.Y.C.R.R. §§ 200.4(b)(1), 200.4(b)(3), 200.4(b)(6)(vii)), and that “the evaluation is 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).

The New York State regulations carefully spell out the requirements for evaluations of students with disabilities. An evaluation includes “any procedures, tests or assessments used selectively with an individual student . . . as may be necessary to determine whether a student has a disability and the extent of his/her special education needs.” 8 N.Y.C.R.R. § 200.1(aa). The purpose of an individual evaluation is “to gather relevant functional, developmental and academic information about the student that may assist in determining . . . the content of the student’s [IEP], including information related to enabling the student to participate and progress in the general education curriculum.” 8 N.Y.C.R.R. § 200.4(b)(1). A reevaluation of a student with a disability must “be sufficient to determine the student’s individual needs, educational progress and achievement, the student’s ability to participate in instructional programs in regular education and the student’s continuing eligibility for special education.” 8 N.Y.C.R.R. § 200.4(b)(4). A reevaluation must also include data to determine the student’s present levels of academic achievement and related developmental needs, whether the student continues to needs special education, and whether the student needs additions or modifications to special education services. 8 N.Y.C.R.R. § 200.4(b)(5)(ii)(a)-(d). In other words, as stated above, a school district’s evaluation or reevaluation of a student must be “comprehensive.” Trumbull, 975 F.3d at 157, 163; see also 20 U.S.C. § 1414(b) & (c).

Section 200.1(ww)(3)(i) describes the four areas of individual needs into which the CSE must inquire: (a) academic achievement, functional performance and learning characteristics which shall mean the levels of knowledge and development in subject and skill areas, including activities of daily living, level of intellectual functioning, adaptive behavior, expected rate of progress in acquiring skills and information, and learning style; (b) social development which shall mean the degree and quality of the student's relationships with peers and adults, feelings about self, and social adjustment to school and community environments; (c) physical development which shall mean the degree or quality of the student's motor and sensory development, health, vitality, and physical skills or limitations which pertain to the learning process; and (d) management needs which shall mean the nature of and degree to which environmental modifications and human or material resources are required to enable the student to benefit from instruction . .

(8 N.Y.C.R.R. §200.1(ww)(3)(iii). School districts are required to “administer tests and other evaluation materials as may be needed to produce the data” described in 8 N.Y.C.R.R. §200.4(b)(5)(ii) and §200.1(ww)(3)(i).

Students must be “assessed in all areas related to the suspected disability, including, where appropriate, health, vision, hearing, social and emotional status, general intelligence, academic performance, vocational skills, communicative status and motor abilities” and 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)(vii) & (ix); see also Application of a Student with a Disability, Appeal No. 13-215 at pp. 16-17.

The CSE must address the results of the evaluation in a meeting to review the student’s IEP. Id. The purpose of the entire evaluation process is to enable the CSE to create an appropriate IEP for the student. A.R. v. Norwalk Board of Education, 183 F. Supp. 2d at 549; Application of a Student with a Disability, Appeal No. 10-033 at pp. 30-32.

The regulations relevant to the IEE request in this proceeding state that: “[i]f the parent disagrees with an evaluation obtained the school district, the parent has a right to obtain an independent educational evaluation at public expense.” However, “a parent is entitled to only one independent educational evaluation at public expense each time the school district conducts an evaluation with which the parent disagrees.” Id. If a parent requests an independent educational evaluation at public expense, “the school district must, without unnecessary delay, either ensure that an independent education evaluation is provided at public expense” or initiate an impartial hearing “to show that its evaluation is appropriate, or that the evaluation obtained by the parent does not meet the school district criteria.” 8 N.Y.C.R.R. §200.5(g)(1)(iv) (emphasis added); see also Pajaro Valley Unified School District v. L.S., 47 IDELR 12 (N.D. Cal. Dec. 15, 2006); Application of the New York City Department of Education, Appeal No. 20-117 at pp. 13-15; Application of the Board of Education, Appeal No. 11-122 at pp. 16-17.

The Second Circuit has made clear that a parent’s right to an IEE at public expense “is triggered” when a parent disagrees with a school district’s evaluation. Trumbull, 975 F.3d at 158, 163 (parent must express disagreement with a school district’s evaluation as a prerequisite to obtaining an IEE at public expense); see also, e.g., Application of a Student with a Disability, Appeal No. 21-091 at p. 52. While school district personnel may ask a parent why he or she disagrees with the district’s evaluation, a parent is not required to provide such an explanation to the district. 8 N.Y.C.R.R. § 200.5(g)(1)(iii); see also 34 C.F.R. § 300.502(b)(4). Federal courts have granted leeway to parents in expressing disagreement. See Trumbull, 975 F.3d at 165 (“Nothing 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.”). Thus, for example, REDACTED’s parent’s concern that the preschool evaluation is “outdated” is sufficient to “trigger” her right to an IEE at public expense.

In New York, the school district bears the burden of proof in an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement. N.Y. Educ. Law § 4404(1)(c); see R.E., 694 F.3d at 184-85.

Here, the Department has failed to “ensure that an independent education evaluation is provided at public expense” or initiate an impartial hearing “to show that its evaluation is appropriate, or that the evaluation obtained by the parent does not meet the school district criteria.” See 8 N.Y.C.R.R. §200.5(g)(1)(iv). As a result, I will order an IEE for REDACTED in the form of a neuropsychological evaluation performed at the REDACTED.

As to the costs of the neuropsychological evaluation conducted at the REDACTED, school districts may establish policies relating to IEEs, including “cost-containment measures.” Application of a Student with a Disability, Appeal No. 19-101 at p. 11. A district is permitted to establish “maximum allowable charges for specific tests to avoid unreasonable charge for IEEs;” however, “[w]hen enforcing reasonable cost containment criteria, the district must allow parents to opportunity to demonstrate that ‘unique circumstances’ justify an IEE that does not fall within the district’s cost criteria.” Id. at 11; see also Letter to Anonymous (OSEP October 9, 2002). Here, the Department presented no evidence of its polices relating to IEEs, such as “cost-containment measures.” As a result, I will grant the full cost of the REDACTED neuropsychological evaluation.

I also exercise my authority as a hearing officer to order that the Department conduct a speech-language evaluation and a physical therapy evaluation of REDACTED.

Furthermore, as per the relevant regulations, Parent shall forward the REDACTED evaluation to Department personnel promptly upon her receipt of this evaluation. The Department shall then convene an IEP meeting, consider the REDACTED IEE report as well as the speech-language and physical therapy evaluations and other relevant materials and input, and develop an IEP for REDACTED. See 8 N.Y.C.R.R. §200.5(g)(1)(vi)(a).

ORDER

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

1. The Department of Education shall fund a neuropsychological evaluation of REDACTED to be conducted at REDACTED by a licensed neuropsychologist. The amount funded by the Department for this evaluation shall not exceed $7,000.00.

2. REDACTED’s parent shall provide Department personnel with the neuropsychological evaluation report promptly upon her receipt of that report from REDACTED.

3. The Department of Education shall conduct a speech-language evaluation and a physical therapy evaluation of REDACTED within 20 school days of this Decision.

4. Department personnel shall provide REDACTED’s parent with copies of the speech-language evaluation report and the physical therapy evaluation report promptly upon their completion.

5. Upon the Department’s receipt of the neuropsychological evaluation report, the Department shall convene an IEP meeting to consider the neuropsychological evaluation report as well as the speech-language and physical therapy evaluations and other relevant materials and input, and develop an IEP for REDACTED.

SO ORDERED.

DATED: November 3, 2023

Jean Marie Brescia, 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.

DOCUMENTATION ENTERED INTO THE RECORD

PARENT’S EXHIBITS

A. Preschool Evaluation October 30, 2018 30 pages

B. Letter from REDACTED October 31, 2023 1 page

C. Progress Report November 2023 1 page Fall

D. Emails between Parent and School Personnel various dates 5 pages

IHO EXHIBIT

I. Request for Impartial Hearing September 28, 2023 2 pages IHO

II. IEP June 22, 2023 40 pages IHO

Footnotes

[1] Exhibits shall be referred to as follows: Parent’s exhibits are identified with letters; Department exhibits are identified with numbers; and Impartial Hearing Officer’s Exhibits are labelled as “IHO.”

[2] In any event, the Second Circuit held in D.S. v. Trumbull Board of Education, 975 F.3d 152, 168-171 (2d Cir. 2020), that the statute of limitations does not apply to IEE requests, and in a further any event, the statute of limitations could possibly run from a school district’s denial of an IEE request, which did not occur in this instance until the prehearing conference.