Impartial Hearing Decision

In the Matter of [a student]., Request for an Impartial Hearing pursuant to the Regulations of the Commissioner of the State Education Department (8 N.Y.C.R.R. §200.5)

Hearing Officer's Findings of Fact and Decision

On June 22, 2010, I was designated as impartial hearing officer by the Board of Education of the School District (the “School District”), pursuant to the Regulations of the Commissioner of the State Education Department (8 N.Y.C.R.R. §200.5), in the matter of [a student]. The School District requested an impartial hearing pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. §1415 (the “IDEA”) on June 13. In the hearing request, the School District seeks authorization to conduct an initial comprehensive evaluation of [A STUDENT] without the parent’s consent (District Ex. 1).

The hearing was scheduled to commence on July 13. The parent requested an adjournment of this date because she was not available to participate in a hearing during the first two weeks of July. The hearing was adjourned to, and conducted on, July 27. The record was closed on August 15, upon the receipt by the hearing officer of the transcript.

The compliance date for the submission of this final written decision was extended to August 28 in order to permit the parent to participate in the hearing. Lists of the persons who appeared in this proceeding and of the exhibits entered into evidence are annexed to this decision.

Background

[A STUDENT] is a year-old girl who resides in the School District and has completed grade in the School District’s public schools. She has attended general education classes and has received academic interventions and remediation in reading, writing and math since grade. Her teachers referred her for evaluations to determine her eligibility for special education services in first, second, third, and sixth grades (District Exs. 2, 4, 6, 7). The parent refused to consent to each of these evaluations. The School District’s Case , the School District’s Committee on Special Education (“CSE”), testified that [A STUDENT]’s teachers have made referrals to evaluate [A STUDENT] for special education services (trans. 49). In grade, due to her lack of academic progress, [A STUDENT] participated in Academic Intervention Services (“AIS”) for reading and writing (four to five periods per week in a small group) and for math. [A STUDENT] was also enrolled in a Reading Recovery program (30 minutes per day of reading remediation provided to first graders) and “was not able to test out,” which, according to Ms. , required a referral for an evaluation (trans. 49, 64; District Exs. 8, 9, 30, 31).

In her referral for the evaluation, [A STUDENT]’s grade teacher reported that [A STUDENT] had difficulties decoding, understanding abstract concepts, remembering information, writing sentences and understanding directions (District Ex. 2 at pp. 2, 4). The parent refused to consent to the evaluation, and the referral was withdrawn after the parent met with the school principal and agreed to work with [A STUDENT] during the summer months (trans. 49-50; District Ex. 3).

In grade, [A STUDENT] continued to receive Academic Intervention Services in reading and writing and in math (District Exs. 32, 33). Reading instruction was provided to [A STUDENT] on a daily basis (District Exs. 10, 12). [A STUDENT]’s classroom teachers referred her for an evaluation because they were concerned about her memory, inability to think abstractly, generalization, organization, inability to work independently, reading (lack of decoding and comprehension skills, poor sight word vocabulary, letter/sound reversals, and calling the letter “x” a “k”), writing (unable to copy words and sentences; unable to write complete sentences), math and language, particularly her difficulties following directions and expressing her thoughts (trans. 50; District Ex. 4 at pp. 2, 4). Again, the parent refused to consent to the evaluation. After a meeting with the parent and school personnel, the referral was withdrawn (trans. 50; District Ex. 5).

In grade, [A STUDENT] continued to receive AIS for part of the year (District Exs. 34, 35). [A STUDENT]’s teacher was concerned about [A STUDENT]’s memory, inability to think abstractly, generalization, disorganization, inability to work independently, reading (with difficulties in decoding, comprehension, word attack, retaining sight words, and reversals of letters and sounds), writing (unable to copy, reversals of numbers, and inability to write sentences), math and language skills (with difficulties following directions and expressing her thoughts) (trans. 51; District Ex. 6). invited the parent to meet with her about the referral (District Ex. 13). At the meeting, the parent stated that [A STUDENT] did not need special education, and the referral was withdrawn (trans. 51).

[A STUDENT] continued to receive AIS in reading in and grades (District Exs. 17, 18, 36, 37). Since [A STUDENT] scored at a “level ” on the grade New York State ELA assessment and at a “level ” on the fifth grade New York State math assessment, she received again received AIS in both reading and math during grade (trans. 24, 32; District Exs. 38, 39).

[a teacher], [A STUDENT]’s grade teacher, testified that he was a certified general and special education teacher and has been employed by the School District as an elementary school teacher for the past thirteen years (trans. 22-23). Mr. [a teacher] stated that as he conducted assessments of the students in his class, he “realized that [A STUDENT] was far behind” in reading and math (trans. 23). At the beginning of grade, [A STUDENT]’s reading abilities tested at the grade level (trans. 24). In fact, [A STUDENT] had regressed over the summer from a level “ ” (the level at which she was reading at the end of fifth grade) to a level “ ” in reading (at the outset of grade) (trans. 38-39; see also trans. 61; District Ex. 68). Level “L” is considered the end of grade/start of grade level (District Ex. 68).

Mr. [a teacher] described the remediation and supports that were made available to [A STUDENT] during grade. In AIS, [A STUDENT] worked on reading and math with specialists outside of the classroom (trans. 25). In addition, [A STUDENT] was part of a “push-in” small group of students who worked with the reading specialist in the classroom (trans. 25- 26; District Exs. 69, 70). Mr. [a teacher] also supported [A STUDENT] academically by working with her in a small group with other students who were functioning on a or grade reading level (trans. 24-25). Furthermore, Mr. [a teacher] worked with [A STUDENT] on a one-to-one basis daily to assist her in completing her work (trans. 33-34, 36).

Mr. [a teacher] met with the parent and the school social worker to discuss [A STUDENT]’s difficulties in the classroom (trans. 27). Mr. [a teacher] and the social worker suggested to the parent that [A STUDENT] be evaluated to determine her eligibility for special education services (trans. 28). The parent “seemed to be in agreement” with an evaluation (trans. 28).

Mr. [a teacher] referred [A STUDENT] for a special education evaluation in December 2010 (trans. 28; District Ex. 7). He made this referral because [A STUDENT] was reading at a third grade level, had difficulty with punctuation and capitalization, had the slowest reading rate of any student in the class, spelled poorly, required support in order to follow multi-step directions, and had difficulty reviewing her work in class (trans. 29-32).

[A STUDENT]’s grade report card shows that [A STUDENT] attained the following year-end grade ranges: writing, ; math, ; science, ; social studies, (District Ex. 46). [A STUDENT] was reading at a level “ ,” which was at a grade level, by the end of the year. Mr. [a teacher] noted on the report card that [A STUDENT] needed teacher support to complete work, was writing was below grade level, and had difficulties understanding math concepts (trans. 35-36; District Ex. 46).

In the referral, Mr. [a teacher] noted that [A STUDENT] required support in the classroom, had weak phonics and word attack skills, read at a grade level, had difficulty with punctuation and capitalization, had difficulty with math (mechanics, math facts and understanding concepts), had a grade level reading rate, and did not review her work for accuracy (District Ex. 7). The referral form states that the following measures were taken to remediate [A STUDENT]’s academic performance: teacher support during classroom lesions, math and reading support, an additional twice weekly 45 minute push-in reading support in the classroom, a multiplication fact sheet, and frequent review of class work. Mr. [a teacher] noted that he had communicated with the parent regarding his concerns about [A STUDENT]’s performance in October, November and December 2010 through a meeting with the parent and by the parent signing tests that [A STUDENT] had failed (District Ex. 7 at p. 4).

Notice of the referral was sent to the parent on three separate occasions in December, January and February (District Exs. 21, 22, 23). These notices described the reasons for the referral, the evaluation process, parental consent and the CSE process and included copies of the Procedural Safeguard Notice. Each time, the parent refused to accept the document (trans. 52; District Exs. 21, 22, 23). The parent did not otherwise respond to these letters (trans. 52). The school principal and then Ms. sent letters to the parent offering to have a conference with her (trans. 53; District Exs. 24, 25). The parent responded in writing to Ms. ’s letter and stated that she “was not signing anything” and did not want to attend a meeting (District Ex. 26 at pp. 1, 4, 5).

Ms. then telephoned the parent and explained to her that she could refuse special education services if [A STUDENT] were to be found eligible (trans. 54). The parent did not agree to the evaluation (trans. 54). ^[1]

Mr. [a teacher] opined that it was “important” for [A STUDENT] to be evaluated for special education because “there may be an area of deficit that [teachers] should be focusing on which would help [A STUDENT] to be successful” (trans. 37). In addition, when [A STUDENT] moves to junior high school, the teachers may not have the same ability as her elementary school teachers to work with her on a basis (trans. 37).

[A STUDENT]’s sixth grade AIS quarterly report stated that [A STUDENT] often reversed “B” and “D” in both reading and writing (District Ex. 38). Ms. explained that “[t]his is very atypical for a sixth grader” and that such “reversals are more typical to kindergarten and first graders. By the time of sixth grade, it should long be remediated” (trans. 57). Ms. stated that even with AIS five times per week in reading and three times per week in math, [A STUDENT] was “not making sufficient progress” (trans. 59-60).

Ms. testified that it was “important to find out [A STUDENT]’s strengths and weaknesses, to develop methods to address her learning. She’s not making sufficient progress given the general education supports” she had been receiving; “it can only benefit her to find out what may be hindering her learning at this time. Whether we can give special education or not, at least the knowledge could help teachers to help her learn” (trans. 62). The Parent’s Case The parent testified that children work at different levels and that [A STUDENT] had “just turned ” (trans. 67). The parent stated that she “can’t ask for better grades” that those that [A STUDENT] attains on the tests she brings home. According to the parent, [A STUDENT] scored , , or 5 on “all” her English, math, science and social studies tests (trans. 67-69, 76). ^[2] The parent denied that [A STUDENT] could be “struggling” so much in school when she received such test scores (trans. 68, 76, 80-81). Other parents had informed her that their children had scored much on tests (trans. 74). [A STUDENT] is a “very, very intelligent” girl with “common sense” (trans. 69). She is a “perfectly normal girl” who does her homework and is engaged in after-school activities (trans. 70).

While “reading has always been an issue” and [A STUDENT] “was weak and struggling with writing,” [A STUDENT] read sixth grade books at home (trans. 69, 78, 81, 83-84). The parent stated that there were “some concerns” with [A STUDENT]’s performance at school, which she discussed with Mr. [a teacher]. The parent addressed these concerns with Mr. [a teacher] by stating that she would obtain tutoring for [A STUDENT] outside of school (trans. 69- 70). The parent did not indicate whether she had obtained after school tutoring for [A

STUDENT]

The parent contended that Mr. [a teacher] was the only one of [A STUDENT]’s teachers who indicated that there was “a problem” with [A STUDENT]’s school performance (trans. 76). [A STUDENT] is “a smart little girl” and “because she’s a little weak on reading does not mean that she’s anything” (trans. 85). The parent acknowledged that [A STUDENT]’s grade report card indicated grades in the to range and in the to range in writing (trans. 87). However, she did not “really believe too much” in what Mr. [a teacher] “has to say” in the report card (trans. 88).

Findings of Fact and Decision

The central purposes of the IDEA are to ensure: (1) that students with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) that the rights of students with disabilities and their parents are protected. 20 U.S.C. §1400(d)(1)(A); Schaffer v. Weast, 546 U.S. 49, 51 (2005); Board of Education v. Rowley, 458 U.S. 176, 179-181 (1982). A free appropriate public opening of the hearing if she would like to present any documentary evidence, and the parent indicated that she did not wish to offer any documents in evidence (trans. 12-13). At the outset of her testimony, the hearing officer again apprised the parent of her right to provide the hearing officer with documentary evidence (trans. 66). During her testimony, the parent was informed by the hearing officer that the hearing officer would consider any relevant documents that the parent wished to provide (trans. 76). While a negative inference might be drawn from the parent’s failure to present the above documents, it is not necessary to draw such an inference in this proceeding. The School District presented overwhelming evidence of teachers’ concerns about [A STUDENT]’s lack of academic progress and need for an evaluation to determine whether she might be eligible for special education services and the School District’s efforts to remediate [A STUDENT]’s difficulties and communicate with the parent with respect to those difficulties. education includes special education and related services designed to meet the student’s individual needs, provided in conformity with a written IEP. See 20 U.S.C. §1401(9); 20 U.S.C. §1414(d). A school district offers a student a free appropriate public education when (1) it complies with the procedural requirements of the IDEA and (2) its CSE develops an Individualized Education Program reasonably calculated to enable the student to receive educational benefits. Board of Education of Hendrick Hudson S.D. v. Rowley, 458 U.S. 176, 206-207 (1982).

In order to effectuate the purposes of the IDEA, the statute places an affirmative obligation upon state and local educational agencies, such as school districts, to identify, locate and evaluate all children with disabilities residing in the state. 20 U.S.C §1412(a)(3)(A); 34 C.F.R. §300.111(a); 8 N.Y.C.R.R. 200.2(a); Handberry v. Thompson, 219 F. Supp. 2d 525, 540 (S.D.N.Y. 2002), aff’d, 436 F.3d 52 (2nd Cir. 2006). A child who is suspected of having a disability may not be evaluated without the consent of the child’s parent. However, the IDEA provides that a school district may initiate an impartial hearing seeking to override a parent’s withholding of consent for an initial evaluation. 20 U.S.C §1414(a)(1)(D)(ii)(I); see also 8 N.Y.C.R.R. 200.5(b)(1)(i)(c) (school district may request an impartial hearing for a hearing officer to determine whether the child should be evaluated without the parent’s consent).

An impartial hearing officer may order an initial evaluation of a child suspected of having an educational disability without parental consent where there sufficient basis to suspect that the child may have an educational disability. Application of a Child Suspected of Having a Disability, Appeal No. 05-071. The school district has the burden of establishing that there is an adequate basis to suspect that the child may have an educational disability. See Application of a Child Suspected of Having a Disability, Appeal No. 01-021. In meeting this burden of proof, the school district need not demonstrate that a student has a disability; but rather must demonstrate “that there is an adequate basis to suspect the existence of a disability which impairs the student’s educational performance.” Application of a Child Suspected of Having a Disability, Appeal No. 01-021 at p. 6. The school district must also demonstrate the attempts, if any, its personnel have made to remediate [A STUDENT]’s performance and to contact and involve the parent in addressing the concerns about [A STUDENT]’s school performance. See id. at p. 5.

The overwhelming evidence in this proceeding demonstrates that School District personnel, during the years that [A STUDENT] has been enrolled in the public school, had “an adequate basis to suspect” that [A STUDENT] experienced some “disability which impair[ed her] education performance.” The record also demonstrates that School District personnel worked assiduously to remediate [A STUDENT]’s academic difficulties and delays and frequently contacted the parent to inform her of these difficulties and delays.

With respect to the basis for the concerns School District personnel had about [A STUDENT]’s educational performance, the evidence clearly demonstrates the following. [A STUDENT]’s first grade teacher noted [A STUDENT]’s lack of academic progress in reading and writing and was concerned about [A STUDENT]’s memory, cognitive functioning and difficulties in following directions. [A STUDENT]’s second and third grade teachers documented their concerns about many of the same, as well as additional, difficulties: memory, cognitive functioning (inability to think abstractly and to generalize), lack of organization, inability to work independently, inability to decode and to comprehend written material, retention of sight words, reversals of letters and sounds, struggles with writing and math, and difficulties with following directions and expressing her thoughts. Mr. [a teacher] described in detail in his testimony, and documented in the evaluation referral form, his concerns about [A STUDENT]’s academic performance. Most significant were [A STUDENT]’s three year delay in reading, her regression in reading during the summer between and grades, her extremely slow reading rate and weak phonics skills, the fact that [A STUDENT] was also “far behind” in math, her difficulties with writing and spelling, and her need for support in the classroom. Furthermore, [A STUDENT]’s AIS progress reports and New York State ELA results demonstrate that [A STUDENT] has made very poor progress in reading. On the fifth grade ELA, [A STUDENT] scored at a “level one,” far below grade level expectations.

The School District undertook numerous and extensive efforts to remediate [A STUDENT]’s delays. [A STUDENT] was enrolled in a daily reading instruction program, Reading Recovery, in t grade. [A STUDENT] has been enrolled in AIS since grade. In fact, in grade, she received these services on both a pull-out and push-in basis. In addition to AIS in grade, Mr. [a teacher] worked with [A STUDENT] in a small reading group of students and on a basis to assist her in completing her class work. Despite all these efforts, [A STUDENT] continued to function grade level in reading, writing and math.

The School District also demonstrated the efforts its personnel made to apprise the parent of [A STUDENT]’s difficulties in school. Communications were sent to the parent during [A STUDENT]’s through grades describing [A STUDENT]’s academic performance and testing results (District Exs. 8-29 [correspondence], 30-39 [AIS progress reports], 41-46 [report cards], and 47-52 [state test results reports]). The referrals were sent to the parent; and, each time, the parent met and/or communicated with school district personnel about those referrals. School personnel, including Ms. and Mr. [a teacher], met with the parent to discuss [A STUDENT]’s academic performance and the need for an evaluation. As a result, the School District amply demonstrated its efforts to inform the parent about, and attempt to involve the parent in addressing, [A STUDENT]’s educational struggles.

Therefore, for all the above reasons, it is ordered, that:

The School District’s request to evaluate [A STUDENT] is granted.

Dated: August 26, 2011

_______________________________________

JEAN MARIE BRESCIA, ESQ.

Impartial Hearing Officer

PLEASE TAKE NOTICE

Within 35 days of the receipt of this decision, the parent and/or Board of Education has a right to appeal this 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.” 8 N.Y.C.R.R. §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 can be found at the Office of State Review website: www.sro.nysed.gov/appeals.htm.

List of Persons Appearing at the Hearing

July 27, 2011 Parent

Attorney for School District

Attorney for School District CSE Chairperson

[a teacher] Teacher

Documents admitted into the Record:

IMPARTIAL HEARING OFFICER EXHIBITS

I. Appointment Letter, dated June 22, 2011 (3 pages).

II. Initial Scheduling Letter, dated June 28, 2011 (3 pages [w/out encl.]).

III. Second Scheduling Letter, dated July 1, 2011 (2 pages).

IV. FedEx confirmation, dated July 21, 2011 (2 pages).

SCHOOL DISTRICT EXHIBITS

DUE PROCESS COMPLAINT NOTICE and AFFIDAVIT OF PERSONAL SERVICE

1. Due Process Complaint and Affidavit of Personal Service, dated June 13, 2011 (5 pages).

REFERRALS FOR EVALUATIONS BY THE COMMITTEE ON SPECIAL

EDUCATION (CSE)

2. Referral, dated April 3, 2006 (4 pages).

3. Withdrawal of Referral, dated June 26, 2006 (1 page).

4. Referral, dated December 4, 2006 (4 pages).

5. Withdrawal of Referral, dated March 9, 2007 (1 page).

6. Referral, dated November 28, 2007 (4 pages).

7. Referral, dated November 30, 2010 (4 pages).

CORRESPONDENCE BETWEEN THE DISTRICT AND

8. Letter from to Parent/Guardian, dated September 2005 (2 pages).

9. Letter from to Parent/Guardian, dated February 27, 2006 (1 page).

10. Letter from to Parent/Guardian, dated September 19, 2006 (1 page).

11. Letter from to unnamed person, undated and received by the District

January 30, 2007 (2 pages).

12. Letter from and to Parent/Guardian, dated October 2007 (1 page). 13. Letter from to Parent/Guardian, dated February 27, 2008 (2 pages). 14. Letter from to unnamed person, undated and received by the District

February 27, 2008 (2 pages). 15. Letter from to Parent/Guardian, dated September 8, 2008 (1 page). 16. Letter from to Parent/Guardian, dated September 8, 2008 (1 page). 17. Letter from to Parent/Guardian, undated (1 page). 18. Letter from to Parent/Guardian, dated September 15, 2009 (1 page). 19. Letter from to Parent/Guardian, dated September 13, 2010 (1 page). 20. Letter from to Parent/Guardian, dated October 2010 (1 page). 21. Letter from to Parent/Guardian, dated December 9, 2010 (3 pages). 22. Letter from to Parent/Guardian, dated January 21, 2011 (3 pages). 23. Letter from to Parent/Guardian, dated February 25, 2011 (3 pages). 24. Letter from to , dated February 28, 2011 (1 page). 25. Letter from to Parent/Guardian, dated March 16, 2011 (2 pages). 26. Letter from to , undated and received by the District on March 22, 2011 (6 pages). 27. Letter from , to Parent/Guardian, dated April 2011 (1 page). 28. Letter from to , dated June 23, 2011 (2 pages). 29. Letter from to , dated June 27, 2011 (1 page).

PROGRESS REPORTS

30. AIS Reading Progress Report, 2005-2006 (1 page). 31. AIS Quarterly Mathematics Progress Report, 2005-2006 (1 page). 32. AIS Reading Progress Report, 2006-2007 (1 page). 33. AIS Quarterly Mathematics Progress Report, 2006-2007 (1 page). 34. AIS Reading Progress Report, 2007-2008 (1 page). 35. AIS Quarterly Mathematics Progress Report, 2007-2008 (1 page). 36. AIS Quarterly Literacy Progress Report, 2008-2009 (1 page). 37. AIS Quarterly Literacy Progress Report, 2009-2010 (1 page). 38. AIS Quarterly Literacy Progress Report, 2010-2011 (1 page).

39. AIS Quarterly Mathematics Progress Report, 2010-2011 (1 page).

REPORT CARDS

40. Report Card, 2004-2005 (2 pages). 41. Grade Report Card, 2005-2006 (2 pages). 42. Grade Report Card, 2006-2007 (2 pages). 43. Grade Report Card, 2007-2008 (2 pages). 44. Grade Report Card, 2008-2009 (2 pages). 45. Grade Report Card, 2009-2010 (2 pages). 46. Grade Report Card, 2010-2011 (2 pages).

NEW YORK STATE EDUCATION DEPARTMENT PARENT REPORTS

47. English Language Arts Report, 2007-2008 48. Mathematics Report, 2007-2008 49. English Language Arts Report, 2008-2009 50. Mathematics Report, 2008-2009 51. English Language Arts Report, 2009-2010 52. Mathematics Report, 2009-2010

PARENT REPORTS

53. Science Report, April 2009 54. Social Studies Report, November 2009

INSTRUCTIONAL SUPPORT SERVICES/INTERVENTION SERVICES

55. Report, dated May 17, 2005 (1 page). 56. Report, dated December 6, 2005 (1 page). 57. Report, dated March 27, 2006 (1 page). 58. Report, dated April 4, 2006 (1 page). 59. Report, dated October 3, 2006 (1 page). 60. Report, dated November 27, 2007 (1 page). 61. Report, dated March 4, 2008 (1 page).

62. Report, dated May 8, 2008 (1 page). 63. Report, dated October 28, 2008 (1 page). 64. Report, dated December 16, 2008 (1 page). 65. Report, dated February 24, 2009 (1 page). 66. Report, dated April 21, 2009 (1 page). 67. Report, dated October 6, 2009 (1 page). 68. Report, dated September 21, 2010 (1 page). 69. Report, dated November 9, 2010 (1 page). 70. Report, dated February 8, 2011 (2 pages).

Footnotes

[1] The record includes numerous examples of communications from school district personnel to the parent describing [A STUDENT]’s academic difficulties from first through sixth grades and the parent’s written responses indicating that [A STUDENT] was not in need of services (District Exs. 8-29 [correspondence], 30-39 [AIS progress reports], 41-46 [report cards], and 47-52 [state test results reports]).

[2] During her testimony, the parent stated that she had the above referenced tests at her home (trans. 67). The parent did not provide these documents to the hearing officer. The parent was informed in the initial scheduling letter that she had the right to present documents to the hearing officer at the hearing (IHO Ex. II). The parent was asked at the 5