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 Number:
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: October 31, 2011
November 30, 2011
December 5, 2011
Actual Record Closed Date: December 14, 2011
Hearing Officer:
NAMES AND TITLES OF PERSONS WHO APPEARED OCTOBER 31, 2011
Parents
District Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED NOVEMBER 30, 2011
Attorney (Via Telephone) — Student
Mother (Via Telephone) — Student
School Psychologist (Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED DECEMBER 5, 2011
Parents
CSE District Representative — DOE
School Psychologist (Via Telephone) — DOE
By Complaint dated September 15, 2011, the matter of . came before me as impartial hearing officer pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. Sect. 1415(f)(1). Appended to the record are the names of the persons who appeared. The Complaint alleges that the District failed to update the child’s Individualized Education Program (IEP) to incorporate the recommendations of , including and related accommodations. At the hearing on December 5, 2011, the parties agreed to also litigate the issue of the appropriateness of the District evaluation by Moschella on the child’s IEP. (45)
The parent is seeking to add the following on the IEP: 1x60 in the doctor’s office; double time; testing in a separate room , on testing, a scribe to provide answers, materials. (114) These are accommodations to be provided by the student’s SETTS teacher. (120)
The parent moved to amend the complaint twice, but both requests for amendment were denied due to the lack of agreement with such amendment by the District. The District moved to dismiss on mootness, which application was addressed by written decision dated November 15, 2011. The District’s application indicated that the child would receive vision therapy for the 2011-2012 school year through a “Related Services Authorization (RSA),” but this application did not address the parent’s contentions regarding revising the IEP. (IHO Exh. 2)
A hearing date occurred on October 31, 2011 in which the parties reviewed the Complaint and argued the parent’s application to amend. The decision date was extended on November 18, 2011 to November 27, 2011 by joint application to allow the parties to prepare for the hearing. (IHO Exh. 1) The decision date was extended on November 23, 2011 to December 19, 2011 on application of the parent to allow for additional preparation for the hearing. Another hearing date, on November 30, 2011, concerned subpoena issues. The testimony and evidence were taken on December 5, 2011. No objection was raised in connection to any extension. The record close date was December 14, 2011, when I received the last transcript.
FINDINGS OF FACT
The child is a year old who is . (92) The child is in private school and the parent is seeking in connection to private school. (108)
On his IEP dated 5/28/10, there is no consideration of . (94; Exh. 5) therapy was not considered or offered. (95)
A evaluation was conducted by of the District dated 5/13/10. (IHO Exh. 3) The report contains testing as part of a triennial evaluation of the student. (55) Consent would be requested of the parent for such an evaluation. (57-58) A consent form was not signed. (96) Mr. ’s testing on the WAIS indicated a “remarkable” disparity between verbal and performance scores. (61)
There was no IEP after the 5/28/10 IEP. (106)
An evaluation was conducted by Dr. of dated June 9, 2010. (IHO Exh. 1) This evaluation recommends that the student receive , , testing in a separate room free of , on testing, a scribe to provide answers, enlarged testing materials, a learning , be allowed to provide “written out” homework. The evaluation is linked to academic performance.
An evaluation was conducted by , ., Addendum dated 3/24/11. This evaluation also recommends for a specific . (IHO Ex. 1) This recommendation is linked to academic performance.
The child received an RSA for the child to get for 2011-2012, but services had not started as of the date of the hearing. (110)
FINDINGS AND DECISION
In 2007 the New York State legislature passed a bill that was signed by the Governor which switches the burden from parent to District except for the second criterion in cases for tuition reimbursement or payment. Chapter 583 of the Laws of 2007. To meet its burden of showing that the child received a free appropriate public education (FAPE) for 2011-2012, the District must show that the recommended program is reasonably calculated to allow the child to receive educational benefits, Bd. of Ed. Hendrick Hudson CSE v, Rowley, 458 U.S. 176 (1982).
In regard to the parent’s request to place the 6/9/10 recommendations of the ( ,
.) on the student’s IEP, the District did not call a witness to dispute the findings of Dr. , who recommended to address reduced , and skills. Dr. also recommended double-time on all tests and examination, testing administered in a separate room free of , that the child be permitted to make on tests requiring answer sheets or writing, enlarged testing materials, “written out” homework assignments. The record also indicates that the IEP in this matter is more than a year old and is not current for this student. There also was no witness to rebut the findings of , ., whose conclusions were similar to that of Dr. . Under the circumstances, the District denied the student a FAPE by failing to provide appropriate services pursuant to NYS Education Law Sect. 3602-c, which requires Districts, upon timely request by parents, to furnish appropriate special education programs to students with disabilities privately placed by their parents in nonpublic schools. Application of a Child with a Handicapping Condition, Appeal No. 91-13. I will accordingly order the District to conduct a new review and revise the IEP to incorporate the recommendations of Dr. in connection to vision therapy and accommodations. It should be noted that Dr. also indicated that the student requires instruction with a specialist, but: 1) this recommendations appears to be satisfied by the provision of SETTS services to the student; 2) the parent did not specifically mention this issue when clarifying the issues relating to the Complaint or during testimony. It should further be noted that courts have allowed IDEA claims by parents in regard to vision therapy services. Dekalb County School Dist., v. M.T.V., 40 IDELR 35 (N.D. Ga. 2003). I should add that additional recommendations were made by , but the parent did not clearly raise this issue in the Complaint or during the opening statement or testimony. (Transcript at 43-44).
In regard to the parent’s contention that the District’s IEP should not include references to Mr. evaluation, the parent is correct that such an evaluation requires consent. Even if an evaluation does not relate to the student’s continued eligibility for services, the District should obtain consent from a parent in this connection. See Letter to 51 IDELR 93 (May 6, 2008). While the record indicates that Mr. ’s evaluation was credible, it was not conducted with appropriate consent. I therefore agree with the parent that this evaluation should not be referenced in the forthcoming IEP. Dated: December 19, 2011
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 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 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.
DOCUMENTATION ENTERED INTO THE RECORD
DEPARTMENT OF EDUCATION DESCRIPTION
5 IEP dated 5/28/10, 17 6 Final Notice dated 6/16/10, 1 pg 7 RSA dated 10/22/11, 1 pg
HEARING OFFICER DESCRIPTION
I Original Complaint dated 9/20/11, 16 pp II Notices of Extensions of Decision Date, 2 pgs. III Evaluation by dated
5/13/10, 4 pgs.