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FINDINGS OF FACT AND DECISION
Case Number:
Student’s Name:
Date of Birth:
District: Hearing Requested By: Parent Date of Hearing: February 29, 2012
March 16, 2012
May 2, 2012 Actual Record Close Date: May 7, 2012 Hearing Officer: Dora Lassinger, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 29, 2012
For the Student:
NONE
For the Department of Education: , DOE Representative , Assistant Principa- (via telephone) , Social Studies Teacher (via telephone) , ELA Teacher (via telephone)
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 16, 2012
Parents
Parent (via telephone) — Student
DOE Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 2, 2012
Parents
Parents
DOE Representative — DOE
the principal of the (hereinafter “ ”), requested an impartial hearing on January — DOE
27, 2012, seeking an evaluation of. without parental consent.[1] — DOE
I was designated to hear this matter on January 30, 2012, pursuant to 20 U.S.C. Section 1415(f) (1). An impartial hearing was initially scheduled for February 29, 2012. On that date, the hearing proceeded in the parents’ absence, after I found that the parents were aware of the date and time for hearing, but failed to attend without any explanation. (Tr. p. 8). On the same date, at the request of the school district, I extended the compliance date by thirty dates due to the extensive testimony. (IHO Ex. V-2).
Subsequently, on March 2, 2012, the parents requested that the hearing be reopened. (IHO Ex. IV-4). I granted the request, and rescheduled the hearing for March 16, 2012. On that date, the parents requested an adjournment and an extension of the compliance date, so that they could consult with an attorney. I granted their request, and extended the compliance date to May 14, 2012. (IHO Ex. V, p. 1). The hearing was adjourned to April 25, 2012; and then rescheduled to May 2, 2012, at the request of the school district.
On May 2, 2012, both parents appeared, and indicated that they were proceeding without counsel. (Tr. p. 97). They waived their right to cross-examine school district witnesses who had testified on February 29, 2012. (Tr. p. 118).2 Summary of Evidence
. received special education services throughout his elementary school years. (Tr. p. 12). From at least his year, was classified with a and attending a special class ( ) with related services . When tested in the Summer of 2010, (following the completion of his ) his full scale IQ was in the . He performed on functioning, it was noted that he appeared to be oil. He was reportedly very
A ”) was performed several months later, on November 23, 2010. It was noted that was . were recommended. It was further recommended that he be mainstreamed in general education classes in one subject area to begin the transition to a general education setting. (DOE Ex. 3). On November 23, 2010, the Committee on Special Education (“CSE”) met and modified ’s program by eliminating physical therapy, terminating for . was continued. (DOE Ex.5, p. 17). It was noted that can and demonstrate his group. (Id. at 3). The IEP included a Placement in a class was continued. was being mainstreamed for science. (Id. at 1, 3). A lateral class change was made to another class on site with different teacher/students. (Id. at 16).
On or about December 1, 2010, when was in the , his mother signed a Parent Revocation Form, removing him from special education. (DOE Ex. 6; Tr. p. 52).[3] Mr. D. testified that they removed from a special class, at his request, because he felt he could be successful in general education. (Tr. p. 132). According to his parents, after removing him from a special class, was assigned to , , where he continued for the remainder of his and performed well in a class of at least 32 students. (Tr. pp. 129-131). As evidence of his progress in general education, they presented an award, presented to on June 15, 2011, for ies. (Par. Ex. H).
In September 2011, entered I.S. 63. While passing most of his subjects, received conduct scores of , the Assistant Principal of , testified that she sees daily, and that she is asked, at times, to assist when he engages in . (Tr. p. 18). While there are days when there are no issues, will lash out, at times, at teachers or students. Ms. attempted to work out a , in consultation with ’s father, which would allow to leave the classroom, go into the hallway, or come to Ms. ’s office if he felt that he needed a time out. Over time, this plan did not work because ’s father did not feel was doing anything wrong, and because had no recollection of what he had done. (Tr. pp. 1921). While Ms. initially had a good rapport with ’s father, as the became more frequent, their . (Tr. p. 23).
By November or December, Ms. was called by teachers, approximately once each week, to assist with ’s behaviors. (Tr. pp. 23-24). Ms. feels that is unable to focus in general education classes with 27 students. In addition, it is for the class to learn on days that he . On February 28, 2011, lesson. (Tr. pp. 26-27).
When asked whether she ever discussed with either parent, that an evaluation for special education services was recommended, Ms. testified that back in September, she told Mrs. . that she felt would be more ; but the parents rejected that suggestion. (Tr. pp. 27-28). She did not say anything about testing. (Tr. p. 27). When ’s father asked “where do you want him to go?” Her response was that she is not a special education teacher. (Id.at 28).
, ’s ELA teacher, testified that . He often . He is . (Tr. p. 31). . He does the . (Id. at 32). While his writing makes sense, there is not much punctuation or grammar. (Tr. p. 40).
does not cooperate in group projects. (Tr. p. 33). ’s handwriting is not legible, and he often has to read his assignments to Ms. She feels he might benefit from assistive technology and a behavioral plan. (Tr. p. 35). She testified that he does not have access to a computer or laptop, and believes he would require “a modification for ” in order to have that access. (Tr. pp. 42-44). An was attempted for (allowing him ), but it was not successful. (Tr. pp. 36-37). Yesterday,
Ms. , ’s social studies teacher, testified that she is certified in social studies and special education. She testified that does not really do his classwork. He elementary school, including geography. In the second quarter, however, there was new information. ’s test and project grades dropped. He handed in his homework. . At times, it was typed, and it was excellent. (Tr. p. 49). prefers not work in a group, and has one or two friends. (Tr. p. 50). Ms. by allowing him . (Tr. pp. 51-52). At times, it seems that does not . Ms.
Ms. , a special education teacher (who also acted as the DOE representative for this hearing), testified that after this hearing was requested, she attempted to meet with both parents to obtain their consent for an evaluation. She met with ’s mother; who stated that she would agree with the evaluation, but that she and the father had agreed that decisions regarding ’s evaluation had to be made jointly. (Tr. p. 56). Ms. made an appointment to meet with ’s father, after the impartial hearing was requested, (during the resolution period) but he did not show up for his appointment. (Tr. pp. 57-60).
The DOE submitted into evidence anecdotal reports of ’s between October 17, 2011 and January 27, 2012. These included reports of , teacher and . (DOE Ex. 9, pp. 2-4).
On December 19, 2011, it was reported that cursed at Ms. and stated that he hates ELA, then complained to the principal that Ms. . On the same date, it was reported that while date, it was . On the same date, it was reported he pushed another student. (Id. at 1-2). On January 13, 2012, it was reported that and . On January 19, 2012, it was The DOE did not present any documentation or testimony regarding its efforts to secure the parents’ consent to the evaluation prior to requesting this hearing. Parent’s Position
On the date of their initial appearance, the parents stated that they were in the process of obtaining an independent evaluation of at the NYU Child Study Center. (Tr. p. 76-77). As of May 2, 2012, however, the parents had not paid for the evaluation to be performed. (Tr. p. 162). After reviewing teacher reports that were submitted by ’s teachers to NYU, (with scores of 2’s and 3’s), the parents stated that they did not plan to pursue the independent evaluation. (Tr. pp. 162-164).
The parents’ position is that is and that the problems complained of are behavioral; not academic. (Tr. p. 118). They feel that ’s should be addressed through disciplinary proceedings, rather than through special education. (Par. Ex. A; Tr. p. 175). Mr. . argued that if indeed had committed all of the acts complained of, he should have been appropriately disciplined; which he was not. (Tr. p. 122).
The parents feel that the school pre-judged based upon the fact that an FBA had been performed, when he was in elementary school. (Tr. pp. 139-140, 150). They noted that Ms. had already formed an opinion, in September that should be in special education. (Tr. pp. 120-121, 150).
Mrs. . testified that she feels that does not require special education or a special education class. She feels that “anyone can use support”. When asked whether she may require additional supports or services to benefit from his education, she stated that she did not know. (Tr. pp. 153-154). She he is not getting “A”s, he is keeping up with the work, and not failing. (Tr. p. 154). She testified that knows his English t and social studies teachers do not like him, and that he is in a tense situation. (Tr. p. 155). He complains that students make fun of him, and that he’s been “walking on ”. He feels that “every move he makes is under scrutiny”. Nevertheless she testified that he loves the school, which is a beautiful place. She does not believe there have been any incidents in math or science. (Tr. p. 156, 160).
Mr. . testified that the parents have never been called in for a conference to talk about Brian’s behavioral issues or disciplinary action. (Tr. pp. 179-180).
On October 24, 2011, Mr. . filed a statement with the DOE reporting that following the October 21, 2011 incident he was informed that would receive a three day suspension. When he went to the school, he was informed that the behaviors reported in the FBA were continuing. (Par. Ex. B). He testified that he complained to the DOE that his son was by . (Tr. p. 144). He testified that on December 16, 2011, was pushed into a bus, while at school. (Tr. p. 145). Afterward, . He feels that the school is requesting an evaluation as retaliation for the parent’s complaint. (Tr. p. 147).
Portions of records of ’s homework assignments and grades from various classes were received in evidence as Parent’s Exhibit F. Based upon the evidence presented, in September and October, completed the majority of his social studies homework assignments. He received a (Par. Ex. F-1) In the third quarter, however, he failed to complete at least two of his social studies homework assignments. His test grades are not shown. (Id. at 6). In the first quarter, performed well in science, with an overall . (Id. at 2). In the second quarter, his overall grade declined to 76. (Id. at 3). In the third quarter, his overall grade was . He (out of 100) on one test. His other test grade is not shown. (Id. at 8). In math, in the second quarter, did well on his homework, but his score on a test is not shown. (Id. at 40). I n the third quarter, it appears that his overall grade was 78. (Id. at 5). Two test scores are not shown. In the third quarter, in ELA, received a score of 0 on two of his homework assignments. (Id. at 7).
Samples of ’s math and written work were also received in evidence. (Par. Ex. G). This included a summary of a chapter in a book, describing a new character. The assignment contains numerous spelling and grammatical errors.
Findings of Fact, Conclusions of Law and Order
34 C.F.R. 300.30(a)(1)(iii) provides that a public agency proposing to conduct an initial evaluation to determine if a child qualifies as a child with a disability must make reasonable efforts to obtain the informed consent of the parent before conducting the evaluation. If the parent fails to respond to a request to provide consent, the public agency may, but is not required to pursue the initial evaluation of the child by utilizing due process procedures. 34 C.F.R. 300.300(a) (3). To meet the reasonable efforts requirement in 34 C.F. R. 300.300(a) 1) (iii), the public agency must document its attempts to obtain parental consent using the procedures in Sec. 300.322(d). Application of a Child with a Disability, Appeal No. 08-094. This includes keeping detailed records of telephone calls made or attempted and results of those calls; copies of correspondence sent to the parents and responses received; and detailed records of visits made to the parent’s home or place of employment and the results of those visits. 34 C.F.R. Sec. 300.322(d).
The record indicates that is form of assistive technology. Contrary to Mr. .’s assertion, all of ’s school problems cannot be remediated through disciplinary proceedings.
While it is very clear that an evaluation should be conducted to determine whether qualifies as a child with a disability, I am unable to order that the evaluation be conducted without parental consent, because the DOE failed to present any evidence of its reasonable efforts to obtain parental consent before requesting this hearing. The importance Congress attached to the procedural safeguards contained in the IDEA cannot be minimized. See Board of Educ. v. Rowley, 458 U.S. 176 (1982).
In addition to the failure of the DOE to present evidence that it satisfied the procedural requirements for overriding the parents’ refusal to consent to an evaluation, the record indicates that the parents’ refusal to consent to an evaluation results, at least in part, from the fact that school personnel are telling the parents that should be placed in special classes before he has even been evaluated. The parents have resisted an evaluation because they believe that should be educated in a general education setting.
Both parties are reminded that (1) parental consent to an initial evaluation is not construed as a consent for special education services (34 C.F.R. 300.300(1) (iii); and (2) that the student’s recommended program must be provided in the least restrictive environment. Application of the Board of Education, Appeal No. 12-029.[4]
It is hoped that the parties will attempt to work together to identify ’s needs and to provide him with the support he requires. Nevertheless, as the DOE has failed to document its reasonable efforts to obtain parental consent, the DOE’s request for permission to evaluate without parental consent is denied. Dated: May 9, 2012
______________________________
DORA LASSINGER, ESQ.
Impartial Hearing Officer
DL:jj
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
PARENT
A Opening Statement, Undated, 1 p. B Parents Statement, 10/24/11, 2 pp. C Complaint , undated, 1 p. D Portions of the Chancellor's Regulations, 3/5/04, 4 pp. E Complaint with Attached Statement, 12/19/11, 3 pp. F Grades and Assignments 2011-2012 School Year, 8 pp. G 's Work, Math and English, Various Dates, 2012, 6 pp. H Certificate, 6/15/12, 1 p. I Closing Statement, Undated, 1 p.
DEPARTMENT OF EDUCATION
1 Impartial Hearing Request, 1/30/12, 3 pp. 2 Evaluation, 7/22/10, 6 pp. 3 , 11/23/10, 2 pp. 4 , 11/23/10, 1 p. 5 IEP, 11/23/10, 18 pp. 6 Case Closing, 12/1/10, 1 p. 7 Notice of Termination of Special Education Services, 2/2/11, 3 pp. 8 Report for 2011-2012 School Year, 2/16/12, 2 pp. 9 Summary of Occurrence Reports, 10/17/11 to 1/27/12, 4 pp.
IMPARTIAL HEARING OFFICER
I E-mail to Parents, 2/10/12 1 p. II Pre-Hearing Conference Summary, 2/13/12, 1 p. III Notice of Hearing, 2/14/12, 1 p IV Email Communications, 5 pp. V Compliance extensions, Various Dates, 2 pp.
Footnotes
[1] In her letter requesting the hearing, Ms. wrote that the school made an initial referral for an evaluation, and the parents have not consented. She further wrote that the school feels that would benefit from a more restrictive environment. (DOE Ex. 1, p. 3), The parents briefly questioned Ms. the DOE representative.
[3] ’s parents separated in October 2009 (DOE Ex. 2, p. 2). Both parents participated in the last CSE review, and in the impartial hearing.
[4] Least restrictive environment means that placement of students with disabilities in special classes, separate schools or other removal form the regular educational environment occurs only when the nature or severity of the disability is such that even with the use of supplementary aids and services, education cannot be satisfactorily achieved. The placement of an individual student with a disability in the least restrictive environment shall: (1) provide the special education needed by the student; (1) provide for education of the student to the maximum extent appropriate to the needs of the student with other students who do not have disabilities; and (3) be as close as possible to the student’s home. 8 NYCRR 200.1(cc).