[REDACTED], a Minor, by and through his/her Parent(s) v. New York City Department of Education, Case No. 271434

FINDINGS OF FACT AND DECISION

Case Number:271434

Student’s Name:[REDACTED]

School District:N.Y.C. Dept. of Ed., Representative District[REDACTED]CSE [REDACTED]

Impartial Hearing Officer:Powell, Melinda

Date of Filing:4/4/2024

Hearing Requested by:Parent

Date of Hearing:6/4/2024

Record Close Date:7/25/2024

Date of Decision:7/25/2024

NAMES AND TITLES OF PERSONS WHO APPEARED AT THE DUE PROCESS HEARING:

For the Student:

[REDACTED]

[REDACTED]

[REDACTED], Observing

For the Department of Education (“DOE” or “District”):

[REDACTED]

DOE Witness	Redacted Term Used in FOFD
None
Parent Witnesses
[REDACTED], Parent	Parent

NEW YORK CITY OFFICE OF ADMINISTRATIVE

TRIALS AND HEARINGS (OATH)

SPECIAL EDUCATION HEARINGS DIVISION

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[REDACTED], a Minor, by and through his/her Parent(s), PETITIONER FINDINGS OF FACT AND DECISION against Case # 271434 THE NEW YORK CITY Melinda Powell, Esq. DEPARTMENT OF EDUCATION, Impartial Hearing Officer RESPONDENT

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FINDINGS OF FACT AND DECISION

I. Introduction

This proceeding arises under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400-1482; the federal regulations implementing IDEA, 34 C.F.R. §§ 300.1, et seq.; Article 89 of the New York State Education Law; and the New York State regulations at 8 NYCRR § Part 200, et seq.

The undersigned Impartial Hearing Officer (“IHO”) is a certified New York State Special Education Hearing Officer, employed by the New York City Office of Administrative Trials and Hearings (“OATH”) as a Special Education Impartial Hearing Officer, and meets all of the qualifications and requirements outlined in both federal and state statute which grant the IHO the authority to adjudicate this hearing. Furthermore, the IHO is not currently, nor has ever been, an employee of the NYC Department of Education, and does not have any personal or professional interest or bias that conflicts with her objectivity to hear this matter.

II. Background and Procedural History

A. Due Process Complaint

Petitioner (Parent) is the parent of Student (“Student” or “Child”). On 4/4/2024, Petitioner filed a Due Process Complaint (“Complaint” or “DPC”) against Respondent, the New York City Department of Education (“DOE” or “District”).

The DPC requests that the IHO make findings that: (1) the DOE failed to provide a Free and Appropriate Public Education (FAPE) to the Student for the 2023-2024 school years because it failed to evaluate the Student in all areas of disability; and (2) the Parent is entitled to an independent educational evaluation (IEE) at public expense.

I was appointed on 4/5/2024 to preside over this matter. A PHC was held on 5/6/2024.

B. Hearing

The Due Process Hearing (“DPH”) took place on 6/4/2024, and the District offered Exhibits 1-8 which were entered into the record. The DOE did not call any witnesses at the hearing and did not submit any affidavit testimony. The DOE cross-examined the Parent’s witnesses.

Parent offered Exhibits A-E, which were admitted. Parent also testified.

III. Discussion

A. Factual Findings

The Student is [REDACTED] years old and is classified as a student with a speech or language impairment. (Ex. 1). The CSE found the Student eligible under the IDEA in May 2023. At that time, she was approximately [REDACTED] and attended kindergarten in a general education class at [REDACTED]. She was referred for an initial evaluation by her mother due to academic concerns and an [REDACTED] diagnosis. At that time, she was also diagnosed with a [REDACTED]. Her Parent raised concerns about signs of autism that the Student showed, including sensitivity to sound and self- harming repetitive behaviors like skin picking. (Tr., Parent Test; Ex. 1). Teacher also relayed concern over her ability to process, lack of comprehension, extreme sensitivity to sound, and emotional instability. (Ex. 1). The CSE initiated the eligibility process and completed testing which included Wechsler Preschool and Primary Scale of Intelligence-Fourth Edition (WPPSI-IV), the eight subtests of the WIAT-IV. (Ex. 1). An occupational therapy assessment was performed with a classroom observation and some testing. (Ex. E). Also, a speech and language assessment was completed. (Ex. 3). In May 2023, the CSE drafted an IEP for the Student, and classified her as a student with a speech or language impairment. The Parent generally agreed at that time to the program developed but expressed concern about the Student’s sensory processing issues and sensory needs, the OT assessment which found normal functioning. (Ex. 1). The Student was ultimately diagnosed with autism by an outside provider in November 2023. (Ex. C).

B. Legal Analysis and Discussion

Two purposes of the IDEA are: (1) to ensure that students with disabilities have available to them a FAPE 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) to ensure that the rights of students with disabilities and parents of such students are protected. 20 U.S.C. § 1400(d)(1)(A)-(B); see generally Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 239 (2009); Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).

The burden of proof is on the school district during 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. Educ. Law 4404(1)(c); see R.E. v. New York City Dep't of Educ., 694 F.3d 167, 184-8 [2d. Cir. 2012].

1. A Parent may file a DPC seeking an IEE.

A threshold issue in this case is whether a Parent may request an IEE in her due process complaint as the first notice to the DOE that the parent sought an IEE. The DOE argued that the IHO should dismiss the IEE claim because an IEE may not be requested in the DPC for the first time. The Board relied on SRO No. 23-081 as persuasive authority. I decline to follow the SRO on this issue¹. The SRO’s rationale for holding that a parent must request an IEE before filing for due process is not supported by the statutory language or regulations. The SRO cites the general rule that when an IEE is requested “a district is required to either grant the IEE at public expense or initiate due process to defend its own evaluation of the student, but a district need only do so "without unnecessary delay" (34 CFR 502[b][2])." The SRO then argues, “The process envisions that a district had an opportunity to engage with the parent on the request for an IEE at public expense outside due process litigation, and if delay should occur as a result, one of the fact specific inquires to be addressed is whether the IEE at public expense should be granted because the district’s delay in filing for due process was unnecessary under the circumstances.” The SRO also alludes to the parents’ conduct as another reason for precluding the relief requested, because they waited years to request their IEE which, in the SRO’s view, was an improper use of the due process procedures.²

I reject the SRO’s categorical conclusion because the SRO failed to give import to several statutory provisions and the broad remedial purpose of the IDEA. “As with any question of statutory interpretation, we begin with the text of the statute to determine whether the language at issue has a plain and unambiguous meaning." Louis Vuitton Malletier S.A. v. LY USA, Inc., 676 F.3d 83, 108 (2d Cir. 2012). To determine a statute's plain meaning, we "look[] to the statutory scheme as a whole and plac[e] the particular provision within the context of that statute." Id. (citation omitted). D.S. v. Trumbull Bd. of Educ., 975 F.3d 152, 162 (2d Cir. 2020). The scope of the matters that a parent can challenge in a due process complaint is broad:

1. (i) Due process complaint notification requirements.

A parent or school district may file a due process complaint 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 free appropriate public education to such student. 200.5(1)(emphasis added.).

Second, once a due process complaint is filed requesting an IEE, the District has an opportunity during the resolution period to engage with the Parent and attempt to resolve the complaint prior to a due process hearing. See, e.g., R.E. v. New York City Dept. of Education, 694 F.3d 167, 188 (2d Cir. 2012)(Because of this resolution period, there is no danger that parents will take advantage of a school district by failing to alert it to IEP deficiencies). Here, the resolution process did, in fact, give the parties an opportunity outside of the hearing to address Parent’s request. And, the Parties’ participation in the resolution process led to a partial resolution of the Parent’s IEE request. Third, a school district cannot "cure" defects in its already-completed evaluation because a parent complains about it and requests an IEE. Letter to Carroll, 68 IDELR 279 (OSEP Oct. 22, 2016). As OSEP stated in Carroll: "The IDEA affords a parent the right to an IEE at public expense and does not condition that right on a public agency's ability to cure the defects of the evaluation it conducted prior to granting the parent's request for an IEE." OSEP continued by stating that "it would be inconsistent with the provisions of 34 C.F.R. Sect. 300.502 to allow the public agency to conduct an assessment in an area that was not part of the initial evaluation or reevaluation before either granting the parents' request for an IEE at public expense or filing a due process complaint to show that its evaluation was appropriate.” Thus, there is little reason to assume that the parties require an opportunity to discuss an IEE request.

Finally, the District cannot require the IEE request to follow a particular form; the request does not even need to be in writing. Neither does a Parent need to explain why she wants an IEE, although the District can ask. 34 CFR § 300.502 (b)(4). Without any language in the statute or regulations which preclude a parent from including a request for an IEE in a due process complaint, I decline to do so.³

2. IEE School district evaluations of students with disabilities under the IDEA serve two purposes:

(1) identifying students who need specialized instruction and related services because of an IDEA-eligible disability, and

(2) helping IEP teams identify the special education and related services the student requires. 34 C.F.R. §§ 300.301 and 300.303. The first refers to the initial evaluation to determine if the child has a disability under the IDEA, while the latter refers to the follow-up or repeat evaluations that occur during a student's education. See 71 Fed. Reg. 46,640 (Aug. 14, 2006).

The right to a publicly financed IEE guarantees meaningful participation throughout the development of the IEP. See Honig v. Doe, 484 U.S. 305, 311, 108 S. Ct. 592, 98 L. Ed. 2d 686 (1988) ("Congress repeatedly emphasized ... the necessity of parental participation in both the development of the IEP and any subsequent assessments of its effectiveness."). Without public financing of an IEE, a class of parents would be unable to afford an IEE and their children would not receive, as the IDEA intended, "a free and appropriate public education" as the result of a cooperative process that protects the rights of parents. There is "nothing in the statute to indicate that when Congress required States to provide adequate instruction to a child 'at no cost to parents,' it intended that only some parents would be able to enforce that mandate." Phillip C. v. Jefferson County Board of Education, 701 F.3d 691, 694 (11th Cir. 2012), citing, Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 524, 127 S. Ct. 1994, 167 L. Ed. 2d 904 (2007) (internal quotations omitted).

Congress included the right to an IEE at public expense as one of the IDEA's essential procedural safeguards: School districts have a natural advantage in information and expertise, but Congress addressed this when it obliged schools to safeguard the procedural rights of parents and to share information with them ..... [Parents] have the right to an independent educational evaluation of the[ir] child. The regulations clarify this entitlement by providing that a parent has the right to an independent educational evaluation at public expense if the parent disagrees with an evaluation obtained by the public agency. IDEA thus 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. Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 60-61, 126 S. Ct. 528, 163 L. Ed. 2d 387 (2005) (citations and quotations omitted).

A parental right to request for an IEE at public expense accrues when an evaluation has been completed by the Board, and the parent disagrees with that evaluation. 34 C.F.R. § 300.502(b)(1); OSERS Letter to Baus, February 23, 2015 ("a parent of a child with a disability is entitled to an IEE at public expense if the parent disagrees with an evaluation obtained by the public agency."). See also, Dubois v. Connecticut State Board of Educ., 727 F.2d 44, 48 (2d Cir. 1984).

An evaluation under 34 C.F.R. § 300.304 refers to the processes and procedures used to "gather relevant functional, developmental, and academic information about the child, including information provided by the parent, that may assist in determining ... (ii) The content of the child's IEP, which includes the use of "technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors."

In an IEE case, the Board has the burden to show that its evaluation was appropriate. See, 34 C.F.R. § 302.502(b)(2) ("If a parent requests an independent educational evaluation at public expense, the public agency must, without unnecessary delay, either (i) File a due process complaint to request a hearing to show that its evaluation is appropriate; or (ii) Ensure that an independent educational evaluation is provided at public expense, unless the agency demonstrates in a hearing pursuant to §§ 300.507 through 300.513 that the evaluation obtained by the parent did not meet agency criteria). If the final decision is that the Board's evaluation is appropriate, the parent still has a right to an independent educational evaluation but not at public expense. 34 C.F.R. § 300.502(b)(3).

Federal regulations proscribe the elements of an appropriate evaluation. First, the public agency must provide notice to the parents of a child with a disability, in accordance with § 300.503, that describes any evaluation procedures the agency proposes to conduct. 34 CFR § 300.304.

Per 34 CFR 300.304, In conducting the evaluation, the public agency must—

1. (1) Use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information about the child, including information provided by the parent, that may assist in determining—
   1. (i) Whether the child is a child with a disability under § 300.8; and
   2. (ii) The content of the child’s IEP, including information related to enabling the child to be involved in and progress in the general education curriculum (or for a preschool child, to participate in appropriate activities);
2. (2) Not use any single measure or assessment as the sole criterion for determining whether a child is a child with a disability and for determining an appropriate educational program for the child; and
3. (3) Use technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors.

And furthermore, each public agency must ensure that—

1. (1) Assessments and other evaluation materials used to assess a child under this part—
   1. (i) Are selected and administered so as not to be discriminatory on a racial or cultural basis;
   2. (ii) Are provided and administered in the child’s native language⁴ or other mode of communication and in the form most likely to yield accurate information on what the child knows and can do academically, developmentally, and functionally, unless it is clearly not feasible to so provide or administer;
   3. (iii) Are used for the purposes for which the assessments or measures are valid and reliable;
   4. (iv) Are administered by trained and knowledgeable personnel; and
   5. (v) Are administered in accordance with any instructions provided by the producer of the assessments.
2. (2) Assessments and other evaluation materials include those tailored to assess specific areas of educational need and not merely those that are designed to provide a single general intelligence quotient.
3. (3) Assessments are selected and administered so as best to ensure that if an assessment is administered to a child with impaired sensory, manual, or speaking skills, the assessment results accurately reflect the child’s aptitude or achievement level or whatever other factors the test purports to measure, rather than reflecting the child’s impaired sensory, manual, or speaking skills (unless those skills are the factors that the test purports to measure).
4. (4) The child is assessed in all areas related to the suspected disability, including, if appropriate, health, vision, hearing, social and emotional status, general intelligence, academic performance, communicative status, and motor abilities;
5. …
6. (6) In evaluating each child with a disability under §§ 300.304 through 300.306, the evaluation is sufficiently comprehensive to identify all of the child’s special education and related services needs, whether or not commonly linked to the disability category in which the child has been classified.⁵
7. (7) Assessment tools and strategies that provide relevant information that directly assists persons in determining the educational needs of the child are provided.

34 CFR 300.304 (c); Warren G. v. Cumberland County School District, 190 F.3d 80, 87 (3rd Cir. 1999); S. Kingstown Sch. Comm. v. Joanna S., 773 F.3d 344 (1st Cir. 2014); Doe v. Cape Elizabeth School District, 832 F.3d 69 (1st Cir. 2016).

The Record includes assessments and testing that the DOE performed, and the DOE asserts that the documents speak for themselves to meet its burden of proof to show its evaluation was appropriate. (See, Tr.). The DOE did not produce any witness to explain how the initial evaluation was planned, the reasoning for why particular assessments were chosen and why others were ruled out, and why an autism disability was not considered.⁶ The IEP does not explain why only certain subtests were chosen and administered. There does not appear to be any autism screening tools in the DOE’s evaluation.

Both the Parent and the classroom teacher reported their suspicions and concerns that the Student exhibited behaviors associated with autism. The OT evaluator reported that she observed the Student’s frequent skin picking but did not make any further recommendations. The Parent and Teacher reported sensory issues, especially with loud noises, which would cause the Student to cry. The Student did not appropriately interact with peers and would often present with a blank stare. (Ex. 1).

However, the OT evaluator did not explain how she concluded the Student’s behaviors were not interfering with her learning. The report lacks detail about the length of time she observed skin picking (although is it noted as “frequent”), whether the Student caused herself injury, or whether the OT investigated further. The report states that the Student did not react to a loud sound, but no further description is provided. In the classroom observation report, the author states that the classroom para reported that the teacher will need to put headphones on the Student because of the effect the noise in the classroom has on the Student. Other times, the Student would cover her ears due to the noise. (Ex. 5). One of classroom Teacher’s primary concerns was sound sensitivity in the classroom. (Ex. 1). The OT report opines that any sensory behaviors are due to lack of sleep. (Ex. E). Where there is conflicting evidence in the documentary record, it is incumbent upon the DOE to articulate the foundation of its conclusions. Furthermore, the OT completed the report without the Parent forms (she states that the form was not received, without further explanation about any effort to retrieve them) and noted that the teacher report had insufficient information to score it. (Ex. E). The report also describes the Student as inattentive in class and unable to properly follow the routines and instructions. (Id.) Thus, the report on its own does not show that the OT part of the evaluation was appropriate.

Defending a District’s evaluation requires more than a showing that testing or assessments were conducted, or that the District completed numerous different tests. As the saying goes, “the devil is in the details.”

3. FAPE

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 (Rowley, 458 U.S. at 206-07; 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]). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not" (R.E., 694 F.3d at 190-91), the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA (M.H., 685 F.3d at 245; A.C. v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]). 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, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245).

As set forth above, the DOE failed to meet its burden to show that it completed a comprehensive initial evaluation which was consistent with the procedural requirements of the IDEA. Therefore, for the same reasons that the Parent is entitled to an IEE, the DOE also denied the Student a FAPE. The requested remedy is the same for both claims: the funding of independent assessments.

V. Orders

NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT AND LAW,

IT IS HEREBY:

1. ORDERED that the DOE shall fund an independent functional behavioral assessment and independent ABA skills assessment by a provider(s) of the Parent’s choosing, at a reasonable market rate.

DATED: 7/25/2024SO ORDERED.

Melinda Powell

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Melinda Powell, IHO

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 proceedings 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.

IMPARTIAL HEARING OFFICER'S CERTIFICATION OF THE RECORD

I, Melinda Powell, Impartial Hearing Officer in this matter, do hereby certify that the below Index of Exhibits included within this Findings of Fact and Decision itemizes the entire record before me. I further certify that the materials included in the record were represented to me to be either the original or a true copy of the original materials that were provided to me in this matter.

DATED: 7/25/2024CERTIFIED BY

Melinda Powell

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Melinda Powell, IHO

LIST OF EXHIBITS

PARENT EXHIBITS

EXHIBIT	DESCRIPTION	DATE	NUMBER OF PAGES
A	Due Process Complaint	04/03/2024	7
B	2023 IEP	05/30/2023	25
C	Neuropsychological Evaluation	11/15/2023	12
D	Speech Evaluation	04/04/2023	17
E	Occupational Therapy Evaluation	5/08/2023	16

DOE EXHIBITS

EXHIBIT	DESCRIPTION	DATE	NUMBER OF PAGES
1	Individualized Education Program	5/24/2023	26
2	Prior Notice Package for Placement	5/30/2023	5
3	Speech/Language Evaluation	4/4/2023	13
4	Occupational Therapy Evaluation of Function and Participation	5/8/2023	14
5	Classroom Observation	2/9/2023	2
6	Social History Evaluation	2/2/2023	3
7	Psychotherapy Evaluation	11/11/2022	12
8	Psychiatric Diagnostic Evaluation	11/15/2022	6

Footnotes

1 Other SRO decisions have held that an IEE may be first requested in a DPC. See, Application of the Dep't of Educ., Appeal No. 21-135.

2 However, in DS v. Trumbull, the Second Circuit held that a two-year limitations period did not apply to IEE requests, and a parent could challenge an old evaluation that may even be three years old at the time of the request. 975 F. 3d at 170.

3 I also note that in D.S. v. Trumbull, the parent had presented an IEE request in a draft due process complaint and then filed it, and the case proceeded on the parent’s complaint. 975 F. 3d at 159.

4 The Student is bilingual. The Speech-Language report shows attention to this fact. The other reports do not.

5 The IEP states that the CSE relied upon the social history, psychoeducational assessment, classroom observations, occupational therapy assessment and speech and language assessment.

6 The IDEA defines autism as "a developmental disability significantly affecting verbal and nonverbal communication and social interaction, generally evident before age 3, that adversely affects a child's educational performance." 34 CFR § 300.8 (c)(1)(i). Other characteristics of autism include "engagement in repetitive activities and stereotyped movements, resistance to environmental change or change in daily routines, and unusual responses to sensory experiences." 34 CFR 300.8 (c)(1)(i). (iii) A child who manifests the characteristics of autism after age three could be identified as having autism if the criteria in paragraph (c)(1)(i) of this section are satisfied.