New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: January 31, 2012

Record Close Date: February 8, 2012

Hearing Officer:

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 31, 2012

Parents

Student

Friend — Student

Director of — DOE

Special Ed Coordinator — DOE

School Psychologist — DOE

On November 30, 2011, the parent of . (“Student”) requested an impartial hearing pursuant to the Individuals with Disabilities Education Act, (“IDEA”) 20 United States Code, Section 1415 (f)(1), claiming a denial of a free appropriate public education (“FAPE”) for the 2011-2012 school year. I received an appointment as Impartial Hearing Officer on November 30, 2011. A hearing took place on the date indicated above, with the timeline to render a decision extended accordingly. A list of individuals who attended the hearing and documents received in evidence are attached to this decision.

represented the New York City Department of Education (“DOE”); the parent represented herself with the assistance of Mr .

I. Background

This case concerns a student who attends School (27Q260). His Individualized Education Program (“IEP”) for the 2011-2012 school year, dated September 19, 2011, identified a classification of disability of , and recommended a ten-month program in a special class, with related services of for thirty minutes one time per week in an unidentified group, and a paraprofessional. DOE Exhibit 1. A previous IEP, dated June 11, 2010, identified a classification of ED and recommended a special class in a special school, with related services of for thirty minutes once a week 1:1 and for thirty minutes once a week , and a full-time crisis management paraprofessional. Parent’s Ex. B. The mother requested an impartial hearing because she was unhappy with the IEP recommendations and as a result sought to have the Student re-evaluated. P. Ex. A.

II. Department’s Case

Ms. stated that to the extent that she was aware, the parent had requested a reevaluation, which the DOE performed. Tr. 34. She produced an Assessment Planning letter referencing a request on April 12, 2010 for a re-evaluation and indicating the date of its completion as June 21, 2011. DOE Ex. 2. The letter also identified June 11, 2010 as the date by which an IEP meeting must be held. She also produced a evaluation, performed by Dr. on June 14, 2011. DOE Ex. 3. In this June 14th re-evaluation, Dr. referenced a May 2009 evaluation whose evaluator had administered the and and described the Student’s at that time. He also included interviews of the Student’s current teachers. The evaluation noted that the Student’s behaviors were reported to have been satisfactory to adequate until he was assigned a paraprofessional in the spring. Ms. also produced a letter, generated by the DOE on September 16, 2011, referencing the request for a re-evaluation, which identified the Student, but no addressee. DOE Exhibit 4. The letter noted that the request was made “because the student’s educational and related services needs warrant a reevaluation (this includes improved academic achievement and functional performance).” Tr. 18. The DOE generated the September 19th IEP, which, Ms. noted, the mother was not aware of, reduced the and changed the classification. Tr. 34. This IEP displayed no signatures on the attendance sheet.

Ms. , who was one of the Student’s teachers and the Special Education Coordinator for testified that the mother had told her that she was unhappy with the evaluations that were done prior to the one done this past fall. Tr. 39. When the Student entered her school, the mother wanted him re-evaluated because she was not happy with the 2010 IEP written prior to entering high school. The Student did have an annual review, and then a triennial coming up, so she requested a re-evaluation to reflect his current status. Tr. 40. Since the parent made her request to re-revaluate at the end of the school year, they did not act on it until the fall. However, she believed the IEP meeting took place in October, not September as the records showed. Tr. 42.

Ms. further testified that she had looked at the Student’s 2009 and 2010 evaluations. Tr. 42-43. Although the 2009 evaluation seemed valid, the 2010 evaluation did not necessarily state anything of substance that could be used. So she could understand the mother’s upset with it and why she requested a new evaluation. The 2011 re-evaluation reflected excerpts from the 2009 evaluation, although it did include more recent teacher observations. However, the actual reflected something from 2009. Given the Student’s progress from the beginning of the current school year until now, she believed he does need a new evaluation. She also believed that the stigma attached to his having a paraprofessional, and how he was introduced to the class, might have contributed to a deterioration of . Tr. 48

III. Parent’s Case

Mr. stated that he had written a letter towards the end of the previous school year requesting that the Student be re-evaluated. Tr. 8-9. He also spoke with Dr. and the guidance counselor, who stated they received the letter and would follow up. The Student was then evaluated.

The mother testified that she had been making the request for a re-evaluation since the Student started high school last year. Tr. 31; DOE Ex. 2. She requested again in June 2011. She believed the DOE had relied on information that was dated, and that the did not warrant the assignment of a full-time paraprofessional. Further, she had written a letter requesting a re-evaluation so that the Student’s IEP could reflect his current needs. The Student had told his private therapist that he did not need a paraprofessional upon going into . Tr. 46. After they assigned one, his have gone downhill.

IV. Findings of Fact and Conclusion of Law

It is well established that "[t]he core of the [IDEA] is the cooperative process that it establishes between parents and schools" (Schaffer v. Weast, 546 U.S. 49, 53 [2005]). In accord with the IDEA's general requirement that parents participate in determining the educational placement of their children (see 20 U.S.C. §§ 1414[e]; 1415[b][1]; 34 C.F.R. §§ 300.116, 300.327, 300.501[c]; see also Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 368 [1985] ["the Act emphasizes the participation of the parents in developing the child's educational program and assessing its effectiveness"]; Bd. of Educ. v. Rowley, 458 U.S. 176, 182 n.6 [1982] [Congress sought "to maximize parental involvement in the education of each handicapped child"]), districts are specifically required to permit parents to participate in the evaluation process, including considering information provided by the parent about the student (see 34 C.F.R. § 300.304[b][1]).

One component of parental participation rights is the right to obtain an IEE (see 20 U.S.C. § 1415[b][1]; 34 C.F.R. § 300.502; 8 NYCRR 200.5[g]). Federal regulations define an IEE 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]; see 8 NYCRR 200.1[z]). An evaluation is defined in federal regulations as the "procedures used in accordance with [34 C.F.R.] §§ 300.304 through 300.311 to determine whether a child has a disability and the nature and extent of the special education and related services that the child needs" (34 C.F.R. § 300.15). An evaluator is required to review existing evaluative data and identify what further data is necessary to determine the student's educational and developmental needs for special education and related services (34 C.F.R. § 300.305[a]). If further data is necessary, the evaluator is required to gather relevant information about the student to make such a determination of the student's needs (34 C.F.R. § 300.304[b][1]; see Educ. Law § 4402[3][a]). In gathering such information, the evaluator is required to use multiple assessments to determine the scope of the student's needs and assess the student in all areas of disability in a sufficiently comprehensive manner "to identify all of the student's special education and related services needs" (34 C.F.R. § 300.304[b][2]; [c][4], [6]; see 34 C.F.R. § 300.306[c][1]).

It is well settled that federal and State regulations provide that, subject to certain limitations, a parent has the right to an IEE at public expense if the parent disagrees with an evaluation obtained by the school district (34 C.F.R. § 300.502[a], [b]; 8 NYCRR 200.5[g][1]; see R.L. v. Plainville Bd. of Educ., 363 F. Supp. 2d. 222, 234-35 [D. Conn. 2005] [finding parental failure to disagree with an evaluation obtained by a public agency defeated parent's claim for an IEE at public expense]). A parent, however, is only entitled to one IEE at public expense "each time the public agency conducts an evaluation with which the parent disagrees" (34 CFR 300.502[b][5]; 8 NYCRR 200.5[g][1]; see R.L., 363

F. Supp. 2d at 234-35). If a parent requests an IEE at public expense, the school district must, without unnecessary delay, ensure that either an IEE is provided at public expense or initiate an impartial hearing to show that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria (34 C.F.R. § 300.502[b][2][i]-[ii]; 8 NYCRR 200.5[g][1][iv]; see, e.g., R.L., 363 F. Supp. 2d. at 23435; A.S. v. Norwalk Bd. of Educ., 183 F. Supp. 2d 534, 549 [D. Conn. 2002] [upholding order of reimbursement where the district failed to demonstrate that its evaluation was appropriate]; Application of the Bd. of Educ., Appeal No. 09-109; Application of a Student with a Disability, Appeal No. 08-101). If a school district's evaluation is appropriate, a parent may not obtain an IEE at public expense (34 C.F.R. § 300.502[b][3]; 8 NYCRR 200.5[g][1][v]; DeMerchant v. Springfield Sch. Dist., 2007 WL 2572357, at *6 [D. Vt. Sept. 4, 2007]; Application of a Student with a Disability, Appeal No. 09-121; Application of a Student with a Disability, Appeal No. 08-039; Application of a Child with a Disability, Appeal No. 07-126; Application of a Child with a Disability, Appeal No. 06-067; Application of the Bd. of Educ., Appeal No. 05-009; Application of a Child with a Disability, Appeal No. 04-082; Application of a Child with a Disability, Appeal No. 04-027).

The parent initiated this hearing because she was dissatisfied, at first, with the lack of responsiveness by the DOE to her request for an evaluation, and then, with the evaluation by when her request was for a new evaluation. On the credible testimony of the Student’s teacher and the parent, I find that the DOE did not meet its burden that evaluation was appropriate. It relied heavily on evaluative data that was two years old. By all accounts, the Student’s behaviors had been improving, at least until the implementation of the full-time behavior paraprofessional component of his current IEP. Therefore, I find that the parent is entitled to an IEE at DOE expense, in order to obtain a complete and comprehensive evaluation of the student’s educational status and needs.

Order

The DOE shall immediately fund a comprehensive independent of the Student to be conducted by a NYS-licensed and approved selected by the parent. Upon its receipt, the parent shall immediately make the report of the evaluator available to the DOE, together with any other report or assessment germane to creating an appropriate program for the Student. Within one week of receipt of the IEE and other pertinent documents, if any, the DOE, having made all reasonable every effort to ensure the parent’s attendance, shall convene a legally constituted Committee on Special Education to consider the results and make its recommendations. Dated: February 13, 2012

______________________________

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 ON JANUARY 31, 2012

PARENT

A Impartial hearing request, dated 10/18/11, 1 page B IEP, dated 6/11/10, 13 pages

DEPARTMENT OF EDUCATION

1 IEP, dated 9/8/11, 11 pages 2 Assessment Planning, dated 4/12/10, 1 page 3 Evaluation, dated 6/14/11, 4 pages 4 Request for Evaluation, dated 9/16/11, 1 page