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 No:
District:
Hearing Requested By: Parents
Hearing Dates: 1/31/11, 2/8/11, 3/1/11, 3/11/11, 4/6/11
Hearing Officer: , Esq. Findings of Fact and Decision
PERSONS WHO APPEARED ON JANUARY 31, 2011
Father
Attorney for Parents
Director of Special Education
Attorney for District
School Psychologist
PERSONS WHO APPEARED ON FEBRUARY 8, 2011
Father
Attorney for Parents
Director of Special Education
Attorney for District
School Psychologist
Psychologist
PERSONS WHO APPEARED ON MARCH 1, 2011
Father
Attorney for Parents
Attorney for District
School Psychologist
Psychologist
PERSONS WHO APPEARED ON MARCH 11, 2011
Father
Attorney for Parents
Attorney for District
School Psychologist
Psychologist Findings of Fact and Decision
PERSONS WHO APPEARED ON APRIL 6, 2011
Father
Attorney for Parents
Attorney for District
School Psychologist
Psychologist Findings of Fact and Decision
BACKGROUND
The Parents filed a due process complaint notice in this case, requesting that the independent educational evaluator they hired, Dr. be permitted to conduct classroom observations of their son (the “Student”). The Student is a year old boy who has been classified as having . The complaint asserts that on or about September 7, 2010 the office of the Parents’ independent educational evaluator, the , contacted the Director of Special Education for the Union Free School District (the “District) to schedule a classroom observation as part of an evaluation of the child. On September 14, 2010, Ms.
informed Dr. that the District would not allow him to conduct a classroom observation. The District asserts that it has a long standing practice regarding observations by outside evaluators to safeguard against classroom disruptions and to protect the privacy of its students. The Parents contest this assertion and argue that the District allows its own outside evaluators to conduct classroom observations. The District asserts that Ms. offered to arrange for Dr. to meet with staff to discuss the student’s needs and abilities, to distribute any and all materials to help Dr.
assess the student’s functioning in all areas and to send any evaluations, progress reports, report cards and observations that he required for the evaluation. The Parents assert that Dr. cannot make a complete evaluation of all areas of the child’s needs, and cannot produce an evaluation that is sufficiently comprehensive to identify all of the child’s special education and related services needs without the requested classroom observation.
The District asserts that “neither IDEA, nor New York State law, nor the regulations, provide or require direct access to a classroom for an outside evaluator looking to evaluate a current program” (T. 9 at 11-15). In their closing memorandum, the District asserted:
“the parents’ private evaluator is not entitled to observe [the student] in the classroom setting, as it is contrary to the District’s long-standing practice, it would be disruptive and intrusive to [the student] and the other students and teachers in his various class
(sic), and it would violate the confidentiality rights of the students in the class. Further, neither state nor federal law mandate that an observation is necessary under these circumstances in order for Findings of Fact and Decision parents to meaningfully participate in their child’s education, as such information is available to the parents and their evaluator in other more reliable forms.” (Exh II, p. 6).
On December 21, 2010, I conducted a conference call with the attorneys on the case. On that call, we selected dates for the hearing. The attorney for the Parents indicated that he was still trying to arrange access to information at the District’s offices. Ultimately, the parties were able to arrange such access on January 19, 2011. On December 21, 2010, the parties jointly requested an extension of the decision date for due process reasons. I weighed the relevant factors, taking into special account that the request in this case related to a time-sensitive issue (an evaluation), and extended the decision date for 30 days, to February 28, 2011.
The first day of hearing was held on January 31, 2011. The hearing was not completed on that date and the parties jointly requested an extension of the decision date to allow for the continuation of the hearing. On February 2, 2011, I granted that request and extended the decision date for 30 days, to March 30, 2011. The hearing was continued on February 8, 2011, March 1, 2011, and March 11, 2011. On March 11, 2011, the parties jointly requested an extension of the decision date to allow for the continuation of the hearing. On March 12, 2011, I granted that request after weighing the relevant factors, and extended the decision date for 30 days, to April 23, 2011. The hearing was concluded on April 6, 2011. At the last day of hearing, the parties jointly requested an extension of the decision date to allow time for the submission of memoranda of law. I granted that request and extended the decision date for 30 days to May 23, 2011. The new record close date was set at May 9, 2011. On May 9, 2011, the attorney for the Parents requested additional time to submit his memorandum of law. The District did not object, and I agreed that both parties could submit their memoranda of law on or before May 11, 2011.
FINDINGS OF FACT AND DECISION
As a preliminary matter, the District argues that the denial of a classroom observation is not an IDEA violation in that it does not result in the loss of educational opportunity or seriously deprive the parents of their rights to participate in the IEP process. They further argue that the Parents do not allege an IDEA violation to support Findings of Fact and Decision such a claim (See Exh. II, p.l 17). Regulations of the Commissioner of Education of New York provide that:
“ [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.” 8NYCRR§200.5(i).
“ In matters alleging a procedural violation, the decision of the impartial hearing officer may find that a student did not receive a free appropriate public education only if the procedural inadequacies impeded the student’s right to a free appropriate public education, significantly impeded the parent’s opportunity to participate in the decision-making process regarding the provision of a free appropriate public education to the parent’s child, or caused a deprivation of educational benefits.” 8
NYCRR§200.5(j)(4).
The regulations provide that the foregoing paragraph “shall not be construed to preclude an impartial hearing officer from ordering a school district to comply with procedural requirements” under Part 200 and Part 201 of the state regulation. 8 NYCRR§200.5(j)(4). See also 20 U.S.C.§1415(f)(3)(E).
The instant case alleges an issue relating to the evaluation of a student with a disability and seeks a remedy which would provide the opportunity for an independent educational evaluation (an “IEE”). I find this to meet the requirements of the regulations. The case cited by the District in support of its claim that there is no cognizable IDEA violation, Grim v. Rhinebeck Cent. Sch. Dis., 346 F. 3d 377 (2d Cir. 2003), is inapposite. In Grim, the second circuit reversed a finding of tuition reimbursement due to procedural violations where a student had been offered an appropriate recommendation. These violations consisted of a delay in development and review of three individualized educational program (“IEPs”) and a formulaic articulation of goals and strategies in the IEPs. The court found that educational benefits were conferred despite the procedural flaws. That set of facts is not relevant to the instant case which involves an evaluation. I note that evaluations are the foundation of special education services under the IDEA. If the parents were able to obtain a classroom evaluation as part of their IEE, it might provide insights into the child’s needs which could possibly lead to improved services for Findings of Fact and Decision the student. It is therefore impossible to say that the results of this hearing could not have a substantive impact on the student’s education. 34 C.F.R. §300.502 makes it clear that IEEs are an appropriate subject matter for a hearing. Moreover, both federal and state law make it clear that the limiting paragraphs should not be construed to preclude a hearing officer from ordering a district to comply with procedural requirements. In the instant case, the Parents are requesting that I order the District to comply with the requirement to allow an IEE.
I turn now to the merits of the case. The IDEA and New York State Law provide that an evaluation must be performed for students who are referred to special education. 20 U.S.C. §1414(a); 8 NYCRR §200.4(b). An evaluation consists of a collection of assessments and no single measure or assessment may be used as the sole criterion for determining whether a student is a student with a disability or for determining an appropriate educational program for a student. 20 U.S.C. §1414(b)(2); 8 NYCRR §200.4(b)(6)(v). A classroom observation must be included as part of the initial evaluation and may be included in reevaluations. 8 NYCRR §200.4(b)(1)(iv) and 8 NYCRR §200.4(b)(5)(i); 20 U.S.C. §1414(c)(1)(A)(ii). The purpose of an evaluation is to determine whether a child is a child with a disability and to determine the educational needs of the child. (20 U.S.C. §1414 (a)(1)(C)(i)). The purpose of a reevaluation is to determine whether the child continues to have a disability and the educational needs of the child; the present levels of academic achievement and related developmental needs of the child, whether the child continues to needs special education and related services; and whether any additions or modifications to the special education and related services are needed to enable the child to meet the measurable annual goals set out in the IEP of the child and to participate, as appropriate, in the general education curriculum. 34 C.F.R, §300.305(a). Regulations of the Commissioner of Education of New York provide that a reevaluation shall 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 NYCRR §200.4(b)(4).
Findings of Fact and Decision
Federal law requires that parents must have the opportunity to obtain an independent educational evaluation:
“The procedures required by this section shall include the following:
(1) An opportunity for the parents of a child with a disability to examine all records relating to such child and to participate in meetings with respect to the identification, evaluation, and educational placement of the child, and the provision of a free appropriate public education to such child, and to obtain an independent educational evaluation of the child.” 20 U.S.C. §1415(b)(1).
Federal Regulations reiterate that parents of a child with a disability have the right to obtain an independent educational evaluation:
“The parents of a child with a disability have the right under this part to obtain an independent education evaluation of the child, subject to paragraphs (b) through (e) of this section.” 34 C.F.R, §300.502(a).
An independent educational evaluation is defined under federal regulations as:
“...an evaluation conducted by a qualified examiner who is not employed by the public agency responsible for the education of the child in question” 34 C.F.R, §300.502(a)(3)(i).
Parent initiated independent educational evaluations as well as publicly funded independent educational evaluations are required to be considered by the committee on special education if they meet agency criteria:
“If the parent obtains an independent educational evaluation at public expense or shares with the public agency an evaluation obtained at private expense, the results of the evaluation--
(1) Must be considered by the public agency, if it meets agency criteria, in any decision made with respect to the provision of FAPE to the child; and
(2) May be presented by any party as evidence at a hearing on a due process complaint under subpart E of this part regarding that child.” 34 C.F.R, §300.502(c); See also: 8NYCRR§200.5(g)(1)(vi), which contains the same provision.
Thus, parents have the right to obtain an independent educational evaluation under both state and federal law, and have the right to the results of that evaluation Findings of Fact and Decision considered by the school district. As noted above, the purpose of an evaluation is to determine the needs of the child and to determine whether changes are required in the provision of services to the child. The particular assessments which are chosen to make those determinations are specific to the child. Thus, one can not say that in every case of a reevaluation, a classroom observation is required. Nor can one say that in all cases of a reevaluation a classroom observation is not required. That determination is made on a case by case basis, based on the needs of the child.
The District argues that there is no law or regulation which gives a parent the right to have a private evaluator present in the classroom as part of an independent evaluation. It argues that in contrast to the requirement for an initial evaluation, for which a classroom observation is required, a classroom observation is not required for a reevaluation. (Exh. II, p. 8-9).
The Parents do not argue, however, that there is a duty to perform a classroom observation in a reevaluation, they argue that the parents have a right to have a classroom observation. Thus, although it is not specifically required when a district does a reevaluation, this does not respond to the question of whether the district must allow the parent’s evaluator to conduct a classroom observation if the evaluator believes it is necessary or if the evaluator believes that it will be helpful in determining a student’s needs. Nor does it respond to the question of whether a district must allow the parent’s evaluator to conduct a classroom observation if the district itself would perform such an observation as part of its reevaluation, or if the criteria of the district would have included such an observation had they undertaken one.
The District further argues that in the context of a reevaluation, the regulations provide that:
“the CSE ‘and other qualified professionals...shall identify what additional data, if any, are needed...’ §200.4(b)(5)(i) and (ii); 34
CFR§300.305(a)(2). In such cases, it is the school district that makes the determination of what additional data, if any, is required, and is responsible for administering such assessments and evaluations. §200.4(b)(5)(iii); 34 CFR§300.305(c)” Exh. II,
p. 9- 10
The District asserts that it is the Committee on Special Education (the “CSE”) which determines which assessments (such as a classroom observation) must be Findings of Fact and Decision performed, rather than the parents. They further argue that there is certainly no authority for a classroom observation where a reevaluation is not at issue (Exh. II, p. 10).
The regulations that the District cites above give the CSE the responsibility for making initial determinations in conducting reevaluations. However, these are not the regulations that are relevant when a parent asserts the right to an IEE or when they follow their due process options. For instance, it is clear that if the parents were to request a hearing relating to the adequacy of an evaluation, the hearing officer would determine whether the assessments chosen by the CSE were adequate. Similarly, if parents choose to obtain and pay for an evaluation of their own choosing, they may arrange for any assessments they choose and the district would be required to consider those assessments (if they met the district’s criteria), and the assessments could be presented as evidence in an impartial hearing. The issue in the current hearing only arises because a classroom observation requires an observation in a location which is under the control of the District. When parents request an IEE at District expense, there may be limitations on the scope of the IEE out of concern for the cost to the District1. In contrast, when the IEE is at parent expense, there are fewer limitations required. The Comments to the federal regulations make it clear that if the independent educational evaluation is at public
1 Comments to the changes to Federal Regulations in 2006: Comment: One commenter requested clarification regarding a public agency's right to limit the amount it pays for an IEE and asked whether a public agency can place limits on the frequency of an IEE (e.g., a single IEE in an evaluation cycle or in a child's school career).
Discussion: It is the Department's longstanding position that public agencies should not be required to bear the cost of unreasonably expensive IEEs. This position is reflected in the regulatory provisions. Section 300.502(a)(2) provides that if a parent requests an IEE at public expense, the public agency must provide the parent with information about where an IEE may be obtained and the agency criteria applicable for IEEs. In order for an evaluation to be at public expense, Sec. 300.502(e)(1) requires that the criteria under which an IEE is obtained, including the location of the IEE and the qualifications of the examiner, be the same as the criteria that the public agency uses when it initiates an evaluation, to the extent that those criteria are consistent with a parent's right to an IEE. In addition, Sec. 300.502(e)(2) states that, except for the criteria described above, a public agency may not impose conditions or timelines related to obtaining an IEE at public expense. Although it is appropriate for a public agency to establish reasonable cost containment criteria applicable to personnel used by the agency, as well as to personnel used by parents, a public agency would need to provide a parent the opportunity to demonstrate that unique circumstances justify selection of an evaluator whose fees fall outside the agency's cost containment criteria. Section 300.502(b)(2) provides that if the parent requests an IEE at public expense, the public agency either must ensure that the IEE is provided at public expense or file a due process complaint notice to request a hearing to demonstrate that the agency's evaluation is appropriate. ( 71 FR 46689 (2006 – 08 – 14)) Findings of Fact and Decision expense it must be as comprehensive as an evaluation conducted by the district2. These comments also seem to indicate that it is the evaluator who determines which assessments to include: “[The requirements to use a variety of assessment tools and strategies to gather relevant information] also apply to an IEE...” (71 FR 46690 (2006 – 08 – 14)) If it is at private expense, it, of course, may be as comprehensive as well. This issue generally does not arise because the parents will determine which assessments they want to have made when they are paying for it themselves.
The District further argues that “[c]learly, a classroom observation of [the student] is not necessary for Dr. to render a complete evaluation, and the District’s refusal of such request does not deny FAPE.” (Exh. II, p. 15). However, Dr. testified that a classroom observation is needed when the referral question relates to the educational needs of the student and the quality of the student’s current education program. In other cases, when the question is whether the child meets criteria for an , that is a question that can be answered without conducting a classroom observation. (T. 290). Dr. testified that in the instant case, the
2
Comments to federal regulations: “Comment: Some commenters suggested adding language allowing an evaluator conducting an IEE the opportunity to review existing data, receive input from the child's parents, determine what additional data are needed to determine the scope of the evaluation, and select the instruments appropriate to evaluate the child. The commenters also stated that the public agency should not restrict the scope of the evaluation.
Discussion: We do not believe it is necessary to add language to the regulations regarding the review of existing data, input from the child's parents, the scope of the evaluation, or the instruments used to evaluate the child, because an IEE must meet the agency criteria that the public agency uses when it initiates an evaluation, consistent with Sec. 300.502(e).
Section 300.305(a) provides that, as part of an initial evaluation (if appropriate) and as part of any reevaluation under this part, the IEP Team and other qualified professionals, as appropriate, must review existing evaluation data on the child, including input from the child's parents. Since the review of existing evaluation data and input from the child's parents are part of the public agency's evaluation, they would also be appropriate elements in an IEE. Similarly, Sec. 300.304(b)(1) provides that an evaluation conducted by a public agency must 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 whether the child is a child with a disability under Sec. 300.8, and 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). These requirements also apply to an IEE conducted by an independent evaluator, since these requirements will be a part of the agency's criteria. Generally, the purpose of an evaluation under the Act is to determine whether the child is a child with a disability, and in the case of a reevaluation, whether the child continues to have a disability, and the educational needs of the child. It would be inconsistent with the Act for a public agency to limit the scope of an IEE in a way that would prevent an independent evaluator from fulfilling these purposes.
Changes: None.” ( 71 FR 46690 (2006 – 08 – 14)) Findings of Fact and Decision assessments conducted by the District described certain difficulties that the student was having, but contained brief descriptions of his having difficulty in the classroom, without going into sufficient detail about the interactions in context to pinpoint the difficulty. (See
T. 354 – 358). He testified that it is important for him to see if there are any environmental conditions that affect particular types of behavior. He testified that “it is essential for me to get information about how he functions with respect to his environments. That’s crucial information in making judgments about someone’s functioning and about what they may or may not need. I have to have that information...I can’t make determinations about suitability, effectiveness of educational interactions without seeing them for myself. It’s something that I can’t farm out to somebody else.”
(T. 296).
Dr. also cited authorities in the field of child assessment and testified about the importance of observing a child across settings and in natural settings to get important information from the specific context of the classroom to include information about student learning, student needs, appropriateness of curriculum and intervention, among other things.” (T. 318).
The District argues that it is not necessary for Dr. to observe the student with his own eyes; that observations and reports made by District personnel can substitute for this observation. However, it defies the Parents’ right to have an IEE to require that the observations of District personnel or data collected by the District be relied upon as part of an IEE. In addition, the regulations require that the district consider the results of an IEE – whether it is obtained at public expense or privately – if it meets agency criteria. Federal regulations make it clear that the criteria required by the district for IEEs at public expense must be the same as the criteria the district uses, to the extent these criteria are consistent with the right to an independent educational evaluation.[3] The Findings of Fact and Decision example given in the comments to that regulation logically apply to all independent educational evaluations, regardless of whether they are obtained at public or private expense.4 Since the results of an independent educational evaluation obtained at private expense must be considered by the district if it meets agency criteria, the right to an independent educational evaluation obtained at private expense would be frustrated if the agency criteria could prohibit an independent evaluator from conducting a classroom observation and requiring instead that they rely on data from district personnel. Requiring the independent evaluator to use observations of district personnel or data collected by a district would be inconsistent with the independent nature of an IEE.
Moreover, it ignores the particular expertise that Dr. possesses. Dr.
testified that he has a PhD in . The subject of his Ph.D. included an emphasis on developmental disabilities, including . He also received a master’s degree in applied behavioral analysis and therapy. Dr. has had post doctoral supervision as the clinical and educational director of the as well as in conjunction with the University with a focus on psychological assessment and evaluation of children with developmental disabilities.
was a special education school that was run on a 1:1 educational model based on At he supervised teachers, speech language pathologists and occupational therapists and behavioral analysts. Dr. also
4
“ Comment: One commenter suggested adding language to Sec. 300.502 requiring evaluators who conduct independent educational evaluations (IEEs) to be licensed by the State. Discussion: We are not changing the regulations in the manner requested by the commenter because the regulations already require that the standards be the same for all evaluators, as long as the agency's criteria for evaluators do not prohibit a parent from obtaining an IEE.An IEE is defined in Sec. 300.502(a)(3)(i) as an evaluation conducted by a qualified examiner who is not employed by the public agency responsible for the education of the child in question. Section 300.502(e)provides that in order for an IEE to be at public expense, the criteria under which the evaluation is obtained, including the location of the evaluation and the qualifications of the examiner, must be the same as the criteria that the public agency uses when it initiates an evaluation, to the extent those criteria are consistent with the parent's right to an IEE. Except for these criteria, Sec. 300.502(e)(2) provides that a public agency may not impose conditions or timelines related to obtaining an IEE at public expense. Consistent with applicable agency criteria, it would be appropriate for a public agency to require an IEE examiner to hold, or be eligible to hold, a particular license when a public agency requires the same licensure for personnel who conduct the same types of evaluations for the agency. In contrast, it would be inconsistent with a parent's right to an IEE for a public agency to require all evaluators to be licensed, if only individuals employed by a public agency may obtain a license.” Changes: None. ( 71 FR 46689 (2006 – 08 – 14)) Findings of Fact and Decision worked for of University where he conducted evaluations and assessments of students in the home and school environments. Dr. was adjunct professor at the University of for several years as a professor of (T. 272-286).
Dr. has a variety of other credentials in the field as well. He currently works at the , a subsidiary of the , a private school for children with and related disabilities. His duties there include performance evaluations for children suspected of having an . He testified that he performs evaluations for both school districts and parents (T. 286). Aside from the independent nature of the evaluation, an observation by someone with the credentials and experience of Dr. can not be replaced by an observation by a classroom teacher or a psychologist with a different set of credentials. Dr. testified that “one of the things that comes up in these observations is there may be things, based on my training and experience, that I may see that haven’t been previously reported.” (T. 344)
Dr. testified that the referral question from the Parents in this case was “for a determination of [the Student’s] comprehensive educational needs across environments to include school and home. And specifically there was a question about appropriateness of educational curriculum procedures at school and what he would need in that regard at home, if anything.” (T. 294-295). He testified that checklists and third party measures of classroom behavior and behavior in different environments may be helpful, but that “the information is as good as the informant reporting it. And in many cases the informant is a good reporter and in some cases they are not.” (T. 297 at 4-6). He further testified that these checklists and third party measures do not go into details about the context of the interactions. (T. 297 at 13); they do not talk about the specific conditions under which they are seeing these problems (T. 298 at 5-7).
Specifically, Dr. testified that other instruments could not be substituted for a classroom observation because they do not specifically speak to the referral question, which is the degree of his performance and behavior in context to his environment, his classroom and his home. (T 336).
Findings of Fact and Decision
Dr. further testified that there is error in any measures used and that it is important for him to supplement that information with direct observations, and to corroborate those observations with teachers that have seen the same sort of things. (T. 336-338). He notes, moreover, that there may be things, based upon his training and experience that he may need to see that have not been previously reported (T. 344).
The District argues that a classroom observation is not a necessary component of a evaluation. However, I do not believe the Parents’ right to have the evaluator observe the child rests on the premise that an observation is necessary to a evaluation. It is consistent with the concept of an independent educational evaluation for the evaluator to determine which assessments are needed. Nor is it clear that the evaluation Dr. will be performing is solely a evaluation. An independent educational evaluation is expected to consist of a variety of assessments. Whether these assessments are grouped under the category of a “ evaluation” or are comprised of individual reports or grouped under a different sort of umbrella title is not the point. In any case, the assessments chosen should not be limited. In addition, I would not expect that the criteria for a evaluation would be uniform across the spectrum of all children. One child may have learning issues which are relatively static across contexts and another child may have difficulties which are highly sensitive to stimuli. In the former case, a classroom observation may arguably not be necessary in a reevaluation, while in the latter case, it may very well be important. Just as special education services are individualized for each child; the choice of assessments that comprise an evaluation must be individualized for a student with a disability.
The Student is a year old boy who is in sixth grade at School. He has been classified as having and has been recommended to attend special classes in English, Math and Social Studies and an integrated co-teaching class in science, each with a staffing ratio of 12:1. He also receives therapy and therapy. He receives books on tape, special testing accommodations, and a three hour extended school year program. His parents receive (See Exh. J).
The Evaluation, dated March 22, 2005 (Exh. A), gives an overview and a background of the Student’s needs. At the time, he was a kindergarten student, with Findings of Fact and Decision a classification of who had been receiving special education and related services since preschool. Dr. performed the evaluation and noted difficulties with receptive communication and information processing. “There were times in which he gave responses that indicated that he did not understand what was expected of him by a particular task demand. This was the case even after directives had been explained to him a second time. He also exhibited some difficulties with focus” (Exh. A, p. 2). Among other findings, the evaluator noted that “[h]is practical social judgment is in the extremely range and represents a relative weakness for him” (Exh. A, p. 4). The evaluator also found that his thinking was on a delayed and concrete level and that he lacked selfconfidence and that he often missed, or misunderstood, important sensory-motor information and environmental cues. “These factors may be part of the etiology of his difficulties with working independently” (Exh. A, p. 5). He was also found to be functioning in the range of intelligence with a significant discrepancy between his verbal and non-verbal functioning and a great deal of inter-test and intra-test scatter. There was also delayed functioning in the visual-motor integration area. He was functioning at the level of adaptive behavior with delayed functioning in the areas of communication and daily living skills. He was also found to be impulsive, inattentive and easily distracted and he had a tendency toward being anxious and overly sensitive to criticism or correction
The Evaluation, dated March 4, 2008 (Exh. B), again performed by Dr. , appears to be somewhat less comprehensive, but many of the same findings were made.
A School Based Observation was conducted by the Center for (“ ”) on September 22, 2010 (Exh. D), slightly after the events took place that underlie the issues in this case5. had previously completed a Semantic-Pragmatic Language Assessment on May 28, 2009 (Exh. C). the District’s Director of Special Education, testified that the Parents had had some concerns about [the Student’s] functioning -- his pragmatic
5 Dr. testified that the District it has a practice of not allowing outside evaluators conduct classroom observations, but draws a distinction between outside evaluators who are approved by the Board of Education and are part of the “team” and other outside evaluators. She testified that was the only such outside evaluator (T. 88-90; 153-155) Findings of Fact and Decision language -- and so they had asked Ms. from to do an evaluation
(T. 169-170). Ms. testified that the same evaluator was brought in to do the school-based observation months later (Exh. D):
“...we had a CSE meeting over the summer and [the Student’s] private psychologist, Dr. , who is known to the staff, she comes in yearly, really felt as thought an FBA and a Behavior Intervention Plan was needed...At that meeting she also made some references to the fact that she had some misgivings in terms of the expertise of our staff. And so I really felt in this instance since Ms. had been approved by the Board of Ed, she was once again approved to work with us, I felt like, you know what, she has already evaluated [the Student], has a good feeling for who he is, she participated in his CSE meeting, she knows the family. I thought, you know what, I’m going to have her come in and assist Mrs. , who is the school psychologist in the building, in the development of the BIP. ..Well, you can’t put together a BIP unless you do a Functional Behavioral Assessment. And in order to do that you need a classroom observation.”...And so what Ms. did was she came in and she collected data on the – and you’ll see later on in the plan, on the behaviors that were of concern...And these were behaviors that kind of had ran through his educational records over the years. And so really, the school observation was just in service of the Functional Behavioral Analysis, which was really to create a
BIP.” (T. 174-175)
In the School Based Observation, Ms. noted that the Student remained highly prompt dependent and did not demonstrate self-monitoring skills. He sought reassurance and guidance from his teachers and instructors and had ongoing communication deficits which negatively impacted his ability to verbally engage peers during daily classroom instructions, which resulted in prompting to initiate comments directed to peers and to respond to conversational bids in general. He appeared to be anxious in class, which was not consistently directly observed by the teaching staff; and had demonstrated the need to be correct and had a fear of making a mistake which interfered with his ability to take guesses when he did not know an answer. The observer also noted that he appeared anxious and distractible in response to his schedule; in response to what was happening immediately after a task was completed; in response to students and teachers entering and leaving the classroom; by looking repeatedly to his Findings of Fact and Decision teacher; by engaging in foot tapping and nail biting; and as a result of verbal directives by the general education teacher.
The observation illustrates that the Student has a multitude of behavioral difficulties in the classroom that warrant observation.
The District argues that a “clinical” classroom observation should not be done unless absolutely necessary. (Exh. II, p. 23) as opposed to school psychology evaluations, which Dr. testified, “should always be conducted by a member who is part of the treating team.” (T. 23). The fact that the law provides for an IEE, however, and that an IEE requested after an initial evaluation would involve a classroom observation, refutes that argument. Moreover, Dr. has testified that in this case it is necessary. Dr. further testified that he does not believe that observations are harmful if they are conducted appropriately. (See T 331-332).
I also note that classroom observations are a required element of initial evaluations and a permitted element of subsequent evaluations. Dr. testified that he has never “read of, seen, heard of, in any way contacted any information that talks about these observations being harmful.” (T. 331 at 19-22). He further testified that if “someone conducts themselves in the way that they are trained to when they are learning how to interact with and assess children, there is no doubt in my mind there is no harm in this procedure.” (T. 332 at 6-10). He further testified that classroom observations are ethical and that it would be unethical not to do one (T. 332 at 14-16)
Dr. the school psychologist for the District testified for the District. In her testimony regarding classroom observations she did not testify that observations are harmful and should not be done. Rather, she testified that “if something could be intrusive or could cause anxiety or could change the behavior of anybody in the room badly for an unwanted affect, I would advise not to do it.” (T. 52). She further testified that Jerome Sattler, an authority in the field, states that it is important to observe behaviors across settings ( T. 69-70); and that she likes to have a classroom observation if she is part of the team to see whether there are findings similar to her findings from working with a student on an ongoing basis. She testified: “[i]t’s another piece of information to see if it fits with the behavioral assessments I’ve gotten.” (T. 134 at 1820). She testified that it would not be an ethical violation to do a classroom observation, Findings of Fact and Decision but that the ethics require one to be vigilant about certain concerns (T. 68). She also testified that a classroom observation “might be useful as part of the entire package, but it’s certainly not necessary.” (T. 48-49). She opined that a classroom observation is a snapshot in time and that there are other sources of information such as interviews with the staff, structured and non-structured checklists and information from the parents (T. 50). She testified that a snapshot “is never the most reliable piece of information. It’s nice if you have it, but it’s certainly not necessary.” (T. 140 at 22-23). She further testified that this is especially true with students who have anxiety or who are on the autism spectrum; that they are going to exhibit different presentations during different days and at different moments. (T. 141).
In sum, Dr. s concerns do not support a prohibition against classroom observations. Despite the fact that Dr. states that classroom observations are not necessary, they are a required component of an initial evaluation. Her assertion that classroom observations are a snapshot in time and should be considered with a variety of other information is undisputed, but does not negate the usefulness of such observations.
The District argues that if Dr. is permitted to observe the student, one would expect that the same opportunity would have to be given to any outside personnel working with a child, such as therapists, behaviorists, psychologists, and speech-language therapists (See Exh. II, p. 24). I disagree. Independent Educational Evaluations are provided a special status in the law. There is no argument that the parents, other providers, therapists and others who are not there to evaluate the child should be given permission to observe the child. Moreover, I do not address the issue of whether there is a limit on the frequency of classroom observations for any particular student, since that issue is not before me.
I do not agree with the District that the fact that Dr. has evaluated the children of the attorney for the Parents or that the attorney for the Parents referred the Parents to Dr. is relevant to the issues in this case. Nor do I find meaningful inconsistencies in Dr. ’s testimony, as asserted by the District. Dr. was uncertain about the duration of the proposed classroom observation because it depended on circumstances. In response to questions regarding the purpose of the Student’s evaluation, his answers all related to the Student’s functioning and needs in the Findings of Fact and Decision educational environment and with peers as opposed to a determination as to whether he should be classified as a student with Dr. testified that this was the crucial distinction he was making, as noted previously. I did not find Dr. ’s testimony to include misstatements or to evidence unprofessionalism. I found Dr.
’s testimony credible.
If an independent educational evaluation is at public expense, the criteria under which the evaluation is obtained, including the location of the evaluation and the qualifications of the examiner, must be the same as the criteria that the public agency uses when it initiates an evaluation, to the extent those criteria are consistent with the parent’s right to an independent educational evaluation. 34 C.F.R, §300.502(e)(1). I see no reason to impose any different rule when the independent evaluation is not at public expense. Under the regulations, a parent may only have one independent educational evaluation at public expense each time the public agency conducts an evaluation with which it disagrees. When the parents are paying for the evaluation, there is no reason for this limitation. However, to the extent that a classroom observation could be intrusive to the district or the students in the class, one could argue that the parents should not be permitted subsequent classroom observations after a single independent evaluation is completed for a given period of time. Since there is no allegation that there has been a previous IEE which included a classroom observation, that point is not applicable in the instant situation.
The District also argues that there are privacy concerns regarding the other student’s in the classroom. New York State Regulations provide that personally identifiable data shall be preserved. Such data includes (i) the name of the student, the student’s parent, or other family member; (ii) the address of the student; (iii) a personal identifier, such as the student’s social security number or student number; or (iv) a list of personal characteristics or other information that would make it possible to identify the student with reasonable certainty. See 8NYCRR§2005(e). Boards of Education are required to implement policies that protect such confidentiality. Confidential information shall not be disclosed except in accordance with Federal Regulations 34 CFR §§300.500 through 300.536 and §§300.610 through 300.625. See 8NYCRR§2002(b)(6).
Findings of Fact and Decision
I do not believe that these concerns are insurmountable. The District could protect the privacy of the other students at the same time as it protects the rights of the parents to have an independent observation by requiring the observer to maintain confidentiality regarding the students in the class and by alerting the teachers to the need to protect confidential information relating to the other students in the class when an outside evaluator is present in the classroom. In addition, I note that the regulations relating to the exceptions to confidentiality include the regulations relating to independent educational evaluations 34 CFR §300.502. Dr. explained in his testimony why consent of other parents is required in conducting research studies but consent is not obtained from the parents of other students in the class when conducting an observation of a particular student. He testified that “[t]here is information that’s collected regarding the ecology what’s going on in the classroom that does include other students, but there’s no identifying information. It’s all confidential information.” (T. 428 at 21-25). I also note that the District concedes that if it the parents were to disagree with a district evaluation which included a classroom observation, that they would be entitled to an independent classroom observation. Thus, it can not be that FERPA or other concerns regarding the effect of such an observation on the child or other children in the class or the reliability of such observation would preclude a classroom observation in that context. Nor should it preclude it in the context at hand. I note that the Family Policy Compliance Office issued an opinion in Letter to Shari A. Mamas, 106 L.R.P. 15971 (2003), that FERPA does not specifically prohibit a parent or professional working with the parent from observing the parent’s child in the classroom.
The District also argues that there are concerns regarding the effects of the observation on the other children in the class. Dr. testified that there are procedures that an undertaken to reduce any unwanted effects of observations. He notes that Sattler mentions the process of conferring with the classroom teacher to make sure that if anyone asks about what the observer is doing that the response is they are just there observing the classroom (T. 321). Dr. also testified that he makes sure that he is an unobtrusive part of the classroom, that he is not doing anything to attract attention to himself, that he takes measure to reduce attention such as avoiding eye Findings of Fact and Decision contact and directing body language away from a student who might be looking at him
(T. 322).
the Director of Special Education, testified that the for had conducted an evaluation in May 2009 (Exh. C). She testified that you “can’t put together a BIP [a behavior intervention plan] unless you do a Functional Behavioral Assessment. And in order to do that you need a classroom observation. “(T. 175 at 12-15). Although Dr. did not consider the evaluation he was conducting to be a functional behavioral assessment, in essence it serves the same purpose. To be complete, a functional behavioral assessment should be performed as part of an evaluation of a student whose behavior interferes with his ability to learn. A functional behavioral assessment includes identifying contextual factors that contribute to the behavior. See 8NYCRR§200.4(b) and 8NYCRR§200.1(r)
Dr. testified that he does make some judgments about potential functional relations, but has not been hired to do a functional assessment (T. 567). Although Dr. is not specifically conducting a functional behavioral assessment; his evaluation covers some of the same ground. Dr. ’s testimony therefore supports the need for a classroom observation. A functional behavioral assessment is, in any case, part of an evaluation for a student whose behavioral impact his education. An independent educational evaluation of a student whose behaviors impact his education would therefore be expected to include a functional behavioral assessment and a classroom observation as element of the evaluation.
The District asserts that it has the power to adopt reasonable policies, rules and regulations concerning order and discipline in the schools, which necessitates the ability to regulate school property and visitors thereto. (Exh. II, p. 12). I agree. However, this power does not extend to a prohibition of classroom observations by evaluators chosen by the parents when they invoke their right to an IEE. The District asserts that the State Review Officer (the “SRO”) has consistently upheld a school district’s refusal to grant an outside person the opportunity to observe the classroom of a student with a disability. (Exh. II, p. 17) The authorities it cites, however, are outside the context of an independent educational evaluation, and are therefore not relevant to the issue at hand. Specifically, the District cites Application of a Child with a Disability, Appeal No. 07-013, to support Findings of Fact and Decision its position. However that case involved a request by a parent to observe the student, rather than a request for an independent evaluator to do a classroom observation as part of an independent educational evaluation. Since there is no statutory right for a parent to observe a student in the classroom, the SRO found in favor of the District.
Similarly, Application of a Child with a Disability, Appeal No. 10-094 and Application of a Child with a Disability, Appeal No. 09-082, did not involve issues relating to independent educational evaluations. In those cases, one of the issues of the case was whether the district had an obligation to provide the parents an opportunity to view the placement site. Similarly, Application of a Child with a Disability, Appeal No. 07-049, did not involve an issue relating to an independent educational evaluation. Rather, it related to the adequacy of the opportunity of the parent to visit the placement site.
Both parties cite Letter to Mamas, 42 IDELR 10 (OSEP 2004) to support their positions. However, Letter to Mamas again related to a situation in which parents wished to observe their child in the classroom, rather than a case involving independent educational evaluations.[6] Both parties also cite Letter to Wessels, 16 IDELR 735 (OSEP 1990). In that case, the Office of Special Education Program (“OSEP”) quoted language form 34 CFR §300.503(e) [now contained in 34 CFR §300.502(e)]: “[w]henever an independent evaluation is at public expense, the criteria under which the evaluation is obtained, including the location of the evaluation and the qualifications of the examiner, must be the same as he criteria which the public agency uses when it initiates an evaluation.” It went on to conclude that [i]f a public agency observed a child in conducting its evaluation, or if its assessment procedures make it permissible to have inclass observation of a child, the independent evaluator has the right to do so.” Clearly, in the instant case, the assessment procedures make it permissible to have in-class observation of a child when the District is conducting its own evaluations, Letter to Wessels would then provide that the parents’ evaluators would be permitted to do so as Findings of Fact and Decision well. Although in Letter to Wessels, OSEP quotes language relatng to independent evaluations at public expense, it does so because the regulation includes that language. Yet, it seems clear that OSEP is not distinguishing between the two situations, since the presenting question in Letter to Wessels relates to both independent evaluations paid for by the parent and by the district: “School districts are refusing to allow a person hired by a parent to conduct an Independent Evaluation to observe and/or work with the youngster in his/her present classroom. It seems to me that if parents or ultimately the district, is going to pay for an Independent Evaluation, it would be as complete as possible.”
As noted above, the District contracted with to perform both a Semantic-Pragmatic Language Assessment in May 2009 (Exh. C) and a School Based Observation (Exh. D). Ms. testified in response to a direct question regarding why the District would work with :“ is a well-known agency in . I would say its sister counterpart is the and they are known for their work with children on the [The Parents] had some concerns about [the Student’s] functioning, his pragmatic language, and we asked Ms. to do an evaluation...we felt that we wanted to go to an agency that had a specialty in this area. If I were having another student evaluated and they weren’t I wouldn’t have gone with .” (T. 169-170). Ms. ’s testimony supports the Parents’ view that an expert in such as Dr. would be uniquely capable of evaluating and conducting a classroom observation of the Student.
The Father testified that the Parents decided to get an independent evaluation after meeting with the Attorney for the Parents in June or July (2010). He testified that the Parents met with Dr. to talk about their son’s “ongoing problems functioning in the classroom environment....He was having problems with anxiety issues. Any time he was given any kind of school work, homework, it would get him – he would have to get done right away...He was having problems with communication with other children, difficulty socializing with other children...He was requiring constant redirection in class, reassurances from the teachers, focus issues associated with his ” (T 774-775).
The testimony of Ms. makes it clear that there was concern over the expertise of the staff at the District relating to There was also concern about the need for a behavior intervention plan, and therefore a functional behavioral assessment. Findings of Fact and Decision These concerns were raised by the Student’s doctor, but they were addressed by the District. As part of the functional behavioral assessment, a classroom observation was performed. Ms. testified that one must do a classroom observation when one does a functional behavioral assessment. Clearly, then, one can conclude that the criteria used by the District in performing a functional behavioral assessment – a classroom observation – must be allowed when an independent educational evaluator performs such an assessment. It is of no moment that the evaluation performed by Dr. was not called a functional behavioral assessment. An evaluation can contain many elements, and in fact, is expected to include more than one type of assessment. It is clear from the concern of the Parents regarding the student’s behavior in the classroom that the concerns the Parents wanted Dr. to focus on were related to behavior. It is clear from Dr.
’s testimony that he saw the issue as related to the Student’s behavior. Whether or not a psychologist who is evaluating a child whose needs are relatively static over varying contexts might do a classroom observation is irrelevant to whether a specialist in who is doing an evaluation on a student who has been diagnosed with an will need to do a classroom observation. It is clear that in the instant case, an evaluation would be incomplete without it.
At the hearing, counsel for the Parents cross examined Dr. with regard to her decision to include a classroom as part of a reevaluation of the Student on March 22, 2005 (Exh. A). Counsel for the Parents asked “when you did this classroom observation, was this in accordance with the practice and procedures of Public Schools.” Her response was: “It is my practice. I don’t know if it’s necessarily the practice of the Public Schools. This is how I do it.” (T. 73-74). Dr. testified repeatedly that it was necessary for his evaluation. I see no basis to deny this request.
While I find that the Parents are entitled to have Dr. observe the Student in the classroom, I find so because the facts of the case indicate that Dr. has been asked to do an evaluation, has credentials to do one, and that a classroom observation will provide him with valuable information regarding the Student’s needs. This is distinguishable from a situation in which Parents want to observe the classroom themselves or have a representative observe the classroom. It is also distinguishable from Findings of Fact and Decision a situation in which an expert has been asked to evaluate a program rather than to evaluate the student. In any such case there may not be a right to have such an observer.
Moreover, there may be limits on the frequency and duration of classroom observations. In the instant case, Dr. testified that he intends to observe the Student’s behavior in the classroom, specifically the interactions that he has with his teachers and peers (T. 722). He testified that he will be observing the interactions between the Student and his teachers to understand how that “interaction process occurs”
(T. 725 at 2), but will not be evaluating the teacher (T. 723). Dr. testified that he would be evaluating the Student’s needs with respect to a specific context, the appropriateness of the methodologies and procedures, and specific recommendations as to how to form a specific appropriate program for him. (T. 761). This is the purpose of an evaluation and as such it is appropriate.
Although Dr. will be assessing the usefulness of the methodologies and procedures used by the teachers, that is an appropriate part of an evaluation to the extent that he will be doing so as a way of determining what is effective for the Student and how to fashion an appropriate program for the Student. That is distinguishable from the situation in which an expert is viewing a particular program for the purpose of determining whether it is appropriate for the student rather than to determine the student’s needs and to develop a program to meet those needs.
I THEREFORE ORDER THAT the District shall allow Dr. to conduct a classroom observation of the student within thirty days of the date hereof. Date: May 19, 2011
______________________________
ESQ.
Impartial Hearing Officer Findings of Fact and Decision
PLEASE TAKE NOTICE
Within 35 days of the date of this decision, the parents and/or the school district 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 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 reviewed. 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 the 25- or 35-day period.” (8NYCRR279.2(b)). Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.
Directions and forms for filing an appeal can be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.
Findings of Fact and Decision
DOCUMENTATION ENTERED INTO RECORD ON JANUARY 31, 2011
Parents’ Exhibits Date of Exhibit No. of Pages
A. Evaluation 3/22/05 6
B. Evaluation 3/4/08 5
C. May 2009 46
Assessment
D. School-based observation 9/22/10 13
E. Vineland-II Teacher Rating 9/20/10 9
Form Report
F. Testing Accommodations 2010-2011 5
J. IEP 7/26/10 9
District’s Exhibits Date of Exhibit No. of Pages
1. Letter to Mr. 1/24/11 2
3. Evaluation 6/22/04 Joint Exhibits Date of Exhibit No. of Pages a. Impartial Hearing Request 12/2/10 5 b. District’s Response 12/23/10 18
DOCUMENTATION ENTERED INTO RECORD ON FEBRUARY 8, 2011
Parents’ Exhibits Date of Exhibit No. of Pages
K. IEP 6/23/09 8
M. Assessment of At-Risk and Special 1998 34 Needs Children
O. Curriculum Vitae – undated 14 Findings of Fact and Decision
DOCUMENTATION ENTERED INTO RECORD ON MARCH 1, 2011
Parents’ Exhibits Date of Exhibit No. of Pages
N. Article from Journal on School 2010 28
Psychology
P. Assessment of Children – Sattler 2008 55
Chapters 1 and [6]
Q. 1987 25
R. Psychological Reports: A Guide 2004 3
For Parents and Teachers
S. Best Practices in School Psychology undated 79
T. Ethical Principles of Psychologists 2010 amendments 10 and Code of Conduct
DOCUMENTATION ENTERED INTO RECORD ON MARCH 11, 2011
Parents’ Exhibits Date of Exhibit No. of Pages
G. Attention Profile 6/16/10 1
DOCUMENTATION ENTERED INTO RECORD ON APRIL 6, 2011
Parents’ Exhibits Date of Exhibit No. of Pages
V. Email from Mr. to 3/9/11 [7]
IHO and Mr.
(with attachment)
District’s Exhibits Date of Exhibit No. of Pages
4. Schedule term 3 undated 1
5. Schedule term 4 undated 1
Findings of Fact and Decision
Joint Exhibits Date of Exhibit No. of Pages
c. Parents’ Motion 2/17/11 50
d. Letter from Mr. to IHO 2/22/11 4
| e | Letter from Mr. to IHO 2/24/11 4 |
| and | Mr. |
| f | Email from IHO to attorneys 2/22/11 1 |
g. Email from IHO to attorneys 2/25/11 1
POST-HEARING SUBMISSIONS
Hearing Officer Exhibits Date of Exhibit No. of Pages
I. Email from IHO to 12/21/10 1 Mr. and Mr.
II. Memorandum of law of 5/11/11 35
School District
III. Memorandum of law of 5/11/11 30
Parents
Footnotes
[3] (e) Agency criteria. (1) If an independent educational evaluation is at public expense, the criteria under which the evaluation is obtained, including the location of the evaluation and the qualifications of the examiner, must be the same as the criteria that the public agency uses when it initiates an evaluation, to the extent those criteria are consistent with the parent's right to an independent educational evaluation. (2) Except for the criteria described in paragraph (e)(1) of this section, a public agency may not impose conditions or timelines related to obtaining an independent educational evaluation at public expense. 34 C.F.R. §300.502(e)
[6] In that opinion, the Office of Special Education Programs noted that “there may be circumstances in which access may need to be provided. For example, if parents invoke their right to an independent educational evaluation of their child, and the evaluation requires observing the child in the educational placement, the evaluator may need to be provided access to the placement.” 42 IDELR 10, 11
[6] Email Report 3/3/11 2
[7] Letter from Mr. to IHO 3/8/11 4