Impartial Hearing Decision

UNIVERSITY OF THE STATE OF NEW YORK

STATE EDUCATION DEPARTMENT

_______________________________________________

IN THE MATTER OF THE IMPARTIAL

HEARING BROUGHT UPON THE REQUEST

OF THE PARENTS CONCERNING THEIR CHILD

AGAINST Order Directing Payment

CENTRAL SCHOOL DISTRICT

______________________________________________ This document constitutes the Decision and Order of the undersigned, the duly designated Impartial Hearing Officer (IHO) in an Impartial Hearing brought pursuant to the Individuals with Disabilities Education Act (IDEA) and the New York State Education Laws. The School District will be referred to as “District,” and the parents as “Parents.”

This case came about by an appointment on January 6, 2016. The Complaint Notice, filed by the District, was dated January 5, 2016. (IHO A). By letter application dated January 19, 2016, the Parent sought dismissal of the instant complaint notice. (IHO B). On January 29, 2016 the District formally opposed the relief requested and submitted an affidavit of the Director of Pupil Personnel Services for the District and a Memorandum of Law. (IHO C). In turn, on February 5, 2016, the Parent submitted a reply brief in further support of the motion to dismiss. (IHO D). Finally the District submitted a sur-reply on February 10, 2016. (IHO E).

After conferring with the parties and setting the above referenced briefing schedule, I accept as true all of the factual allegations asserted by the District, and as a matter of law, I find the District failed to timely commence a due process hearing relative to the disputed aspects of an Independent Educational Evaluation (“IEE”) sought by the Parent. I therefore direct the District to pay for the entire cost of the IEE per the invoice submitted in June 2015.

Parent’s Position The Parent’s position is that, after objecting to the evaluations conducted by the District and seeking reimbursement for independent evaluations, the District not only failed to reimburse the Parent in the full amount of $1,600-, but the District delayed in seeking an impartial hearing for over six months and likewise failed to timely commence this action. The Parent argues that the District’s due process complaint notice should be dismissed as untimely and the District should be required to reimburse the Parent for the full cost of the independent evaluations. (See: IHO B).

District’s Position The District’s position is that the Parent obtained an IEE before the District properly received notice, and that the District has no obligation to reimburse the Parent for the cost of the full IEE because the evaluator/practitioner lacks the requisite credentials to conduct all of the evaluations. (See: IHO A at 3-4). The District’s position is also that the Due Process Complaint is timely because it was filed within the timeline specifically prescribed by the New York State Education Department (“SED”).

Procedural History The Parent submitted a letter, dated May 12, 2015, and received by the District on Friday, May 15, 2015, expressing their disagreement with the District’s Psycho-Educational,

Therapy, and evaluations. (IHO C at Aff. of SM Ex. 2). In the letter, the Parent requested that the District fund an IEE to be conducted by

(Id.). The District responded to the Parent’s letter on Monday, May 18, 2015, agreeing to fund only the achievement testing conducted by (to the amount of $600-) as the District found it was the only portion for which held the requisite credentials to conduct. (Id. at Ex. 4). However, had already performed the evaluations on May 13, 2015. (Id. at Ex. 3).

The District received the evaluations and invoice, for $1600-, on June 15, 2015. (Id. at Ex. 3; Id. at Ex. 6). On November 9, 2015, the Parent filed a complaint with the SED, alleging that the District refused to pay for the IEE. (IHO C at Memo. Of Law

Ex. A). On December 9, 2015, the SED sustained the Parent’s complaint, requiring the District to, by January 2016, either pay the full invoice or file a due process complaint notice to initiate a hearing. (IHO C at Aff. of SM Ex. 9). The District elected to file a due process complaint notice within the SED’s prescribed timeline, and, on January 19, 2016, the Parent filed a motion to dismiss the Due Process Complaint. (IHO B).

Legal Standard Federal and State regulations provide that, subject to certain limitations, a parent has the right to an IEE at public expense if the parent disagrees with an evaluation obtained by the school district. 34 C.F.R. § 300.502(a), (b); 8 NYCRR 200.5(g)(1); see R.L. v. Plainville Bd. of Educ., 363 F. Supp. 2d. 222, 234-35 (D. Conn. 2005) [finding parental failure to disagree with an evaluation obtained by a public agency defeated a parent's claim for an IEE at public expense]. If a parent requests an IEE at public expense, the school district must, without unnecessary delay, ensure that either an IEE 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. 34 C.F.R. § 300.502(b)(2)(i)-(ii); 8 NYCRR 200.5(g)(1)(iv) [emphasis added]; see, e.g., A.S. v. Norwalk Bd. of Educ., 183 F. Supp. 2d 534, 549 (D. Conn. 2002) [upholding order of reimbursement where the district failed to demonstrate that its evaluation was appropriate]; Application of the Bd. of Educ., Appeal No. 09-109; Application of a Student with a Disability, Appeal No. 08-101.

“Whether the length of time that has passed before a District initiates a due process hearing or provides the IEE at public expense constitutes “unnecessary delay” is a question of fact, based upon the circumstances of the particular case.” 111 LRP 48178, citing: J.P. v. Ripon Unified School District (E.D. Cal. 2009) 2009 WL 1034993; 52 IDELR 125. The decision continues:

“For example, in Ripon the court determined that the school district's due process request filed more than two months after the request for an IEE was timely, as parties were communicating regarding the request for the IEE in the interim, and did not come to an impasse on the issue until less than three weeks before the school district's filing. In contrast, in the case of Pajaro Valley Unified School District v. J.S. (N.D. Cal. 2006) 2006 WL

3734289; 47 IDELR 12) (Pajaro Valley), the school district did not file its due process complaint to defend its assessment until approximately 11 weeks after Student's request for an IEE. Then, at hearing, the school district offered no explanation as to why it delayed for 11 weeks in filing its complaint, or why that delay was ‘necessary.’ The court found that the school district's ‘unexplained and unnecessary delay in filing for a due process hearing waived its right to contest Student's request for an independent evaluation at public expense, and by itself warranted entry of judgment in favor of Student and [parent].’ (Emphasis added.)” Discussion Despite the breadth of the record, I find the dispositive fact in this case to be the nearly seven-month gap between the District receiving the invoice (June 15, 2015) and the filing of the Due Process Complaint (January 5, 2016). The District failed to pay the invoice or file a complaint notice within a reasonable time after the bill was proffered and the record reflects no attempts at communication or mediation between the District and the Parent to resolve the conflict which would justify the delay. Upon receiving the invoice on June 15, 2015. (IHO C at Aff. of SM Ex. 6). it should have been apparent to the District that its equitable arguments were then ripe for hearing. Rather, I find the District failed to act for months, thus stifling the due process rights of the Parent. To be clear, the basis of this decision is the following regulatory mandate: If a parent requests an IEE at public expense, the school district must, without unnecessary delay, ensure that either an IEE 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. The District has failed to raise any factual reason for failing to initiate an impartial hearing before they were directed to do so by SED. But by then, it was too late. I do not believe it is necessary to speculate concerning unstated motives of the District.

Therefore, I Direct the District to pay the invoice in full and I hereby dismiss the Complaint Notice.

Dated: February 17, 2016

So Ordered, __________________

Martin J. Kehoe III, Esq.

Impartial Hearing Officer

PLEASE TAKE NOTICE

Within 35 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act. “The notice of intention to seek review shall be served upon the school district not less than 10 days before the service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be viewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing to the 25- for 35-day period.” (8 NYCRR §279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision. Directions and sample forms for filing an appeal are included with this decision. Directions and forms can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.

Greece exhibits considered

IHO A. Due Process Complaint Notice, dated January 5, 2016. IHO B. Motion to Dismiss the Due Process Complaint, dated January 19, 2016. IHO C. District’s Memorandum in Opposition to Parent’s Motion to Dismiss, dated January 29, 2016. IHO D. Reply Brief in Further Support of Parents’ Motion to Dismiss, dated February 5, 2016. IHO E. District’s Sur-Reply in Further Support of District’s Opposition to the Parents’ Motion to Dismiss, dated February 10, 2016.