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: March 26, 2012

Actual Record Closed Date: March 27, 2012

Hearing Officer: James P. Walsh, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED MARCH 26, 2012

Parent of Student — Parents

Parent Advocate — Parents

Department of Education and District Representative — DOE

The Matter of ., (hereinafter referred to as “Student”) came before me for determination in accordance with the provisions of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f) (1) and Article 89 of the Education Law of the State of New York, on March 27, 2012. The proceeding was commenced by Parents by correspondence sent to the New York City Department of Education’s Impartial Hearing Office, dated January 31, 2012, and received by the Impartial Hearing Office on the same date. An Impartial Hearing Officer was appointed to preside over this matter, but thereafter recused, whereupon the undersigned was appointed by the New York City Department of Education’s Impartial Hearing Office to preside over this matter by notification dated February 29, 2012. A hearing was scheduled to be conducted on March 19, 2012, but was adjourned at the request of Parent because of illness to the date of March 27, 2012

Student is presently , having been born on . Student attends the (hereinafter AFBES), . Student is presently in the . Student has not been determined to be a student with a disability under the provisions of the Individuals with Disabilities Education Act (IDEA). According to the Due Process Complaint Notice filed by Parents on January 31, 2012 (Exhibit 1), Parent had filed a request with the Principal of AFBES on October 27, 2011 requesting a meeting with the School Based Support Team to discuss challenging behaviors and learning challenges in the class setting. The Complaint also stated that, in such correspondence it was requested that an initial case be opened with the Committee on Special Education (C.S.E.). According to such Complaint, as of the date of filing, no response had been received by Parents from either the school or the C.S.E. (Exhibit 1). As a result of such non-response, Parents sought a number of reliefs, including a P-1 Nickerson Letter; an award of a deference to the CBST for placement in a state-approved non-public school; an award directing that an IEP meeting be held at the conclusion of all pertinent testing to develop an appropriate educational plan; reimbursement to Parents for all testing and evaluations; the issuance of a P-3 letter for compensatory tutoring; and a Functional Behavioral Assessment at the enhanced rate for the purpose of developing a (Exhibit 1).

District appeared in this proceeding by its Representative, who placed three exhibits in evidence, but presented no witnesses. Parent testified in her own behalf. Parent testified that certain concerns regarding had arisen from teacher reports of inattention and failing grades, which caused Parent, on October 27, 2012, to write to the Student attended. In such correspondence (Exhibit A), after expressing many of her concerns, Parent requested that “a CBST case be opened with CSE 5 for initial evaluation…” Parent further testified that, as of January 31, 2012, the date Parents filed their Due Process Complaint, no response had been received by Parent from either school authorities or the Committee on Special Education. District Representative testified on rebuttal that neither she nor anyone at the Committee on Special Education was aware that Parent had filed a request with the that Student be evaluated until the Committee was forwarded a copy of Parent’s Due Process Complaint. Neither party called to either confirm her receipt of Parent’s letter requesting a referral to the C.S.E. or to explain her failure, if she had received such, to forward the parental request to the C.S.E. Evidence confirms that, upon the C.S.E. becoming aware of Parent’s concerns and of Parent’s request for evaluation of Student, it has moved forward in appropriate fashion to process Parent’s referral. Much testimony from Parent and from dealt with matters occurring after Parent’s filing of Parents’ Due Process Complaint, regarding efforts made to secure parental consent for evaluation and discussions regarding the utilization of an evaluation that Parent had arranged to be undertaken by a private evaluator..

Provisions contained in the Regulations of the Commissioner of Education of the State of New York, mirroring provisions contained both in the Individuals with Disabilities Education Act (20 U.S.C. §1412 et seq) and the Regulations issued by the United States Department of Education (34 C.F.R. §300), establish a timeline for the processing of initial referrals of students suspected of having a disability. Initially, if a request is received by the building administrator – as is alleged here – it shall b forwarded to the committee chairperson immediately upon its receipt by the building administrator (8 NYCRR 200.4(a) (4)). Thereafter follow provisions for the securing of consent from parent for evaluation, and, thereafter, the conduct of a committee meeting to determine whether the student is, in fact, eligible for special education services, and, if so, the development of an appropriate program. However, all such timelines are thwarted when the initial step in the procedure – the forwarding of the referral by the building administrator to the committee4 chairperson – is not followed. It is my finding of fact, based upon the testimony of District Representative , that failed to forward Parent’s referral of Student to the committee chairperson, as was required of her. Whether failure to comply with the provisions of the Commissioner’s Regulations arose from unfamiliarity, as the head of a , with such obligation, or confusion with the Parent’s request that “a CBST case be opened with CSE 5” – without defining for Principal Park what a “CBST case” was or even explaining what “CBST” stood for – it is clear that such obligation as has been imposed by the cited Commissioner’s Regulations has not been met. I find, however, that District’s Committee on Special Education cannot be faulted for not taking the steps outlined in the Commissioner’s Regulations in a timely manner, when it was unaware that a request or referral had been made but not forwarded. I am also troubled by the fact that there appears nowhere in the record before me that Parent took any steps whatsoever to inquire as to why the procedure was not being timely addressed – either to or to the C.S.E. - before filing her Due Process Complaint on January 31, 2012

Parents’ Due Process Complaint states that, as a result of the failure of both AFBES and District to respond to Parent’s request that a CBST case be opened by CSE 5, Student has been and continues to be denied a FAPE (Exhibit 1). Parents refer to the obligation imposed upon District by the provisions of the Individuals with Disabilities Education Act (IDEA) to provide Student with a free, appropriate public education. It is presumably upon such contention that Parents seek the myriad of reliefs set out in their Due Process Complaint. However, it is my finding and determination that the procedural failure of Student’s school to forward Parent’s request that a CBST case be opened does not rise to the level necessary to support a finding that Student’s right to receive a free, appropriate public education has been denied. Commissioner’s Regulations mandate that:

“an impartial hearing officer may find that a student did not receive a free, appropriate public education only if 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))

As noted by the State Review Officer in Application of [Deleted] for review of a determination of a hearing officer relating to the provisions of educational services to a student suspected of having a disability, Appeal No. 09-136:

“Further, a procedural violation does not, standing alone, require a finding that a FAPE was denied (see 20 U.S.V

§1415[f][3][E][ii]; 34 C.F.R. §300.513[3][a][2]; 8 NYCRR 200.5[j][4][ii]; Matrejek, 471 F. Supp. 2d at 419).”

There is, indeed, evidence that Student is failing in certain aspects of his academic performance and may be developing . However, there is nothing before me to establish that Student is a student with a disability who requires special education and related services in order to progress appropriately in class. Such is a determination that must be made by District’s Committee on Special Education. To award any of the reliefs set out in Parents’ Due Process Complaint – with the exception of directing that an Individualized Education Program (I.E.P) meeting be held at the conclusion of all pertinent testing – would be inappropriate. Such application by Parents for such reliefs is, accordingly, denied.

As to Parents’ request that “An award directing that an IEP meeting be held at the conclusion of all pertinent testing for the purpose of developing an appropriate educational plan to include a deferment to the CBST for placement in a State approved non-public school” (emphasis is mine), it would certainly be grossly inappropriate to grant Parents’ request for such relief, as such would usurp the function of the Committee – when there is no evidence whatsoever that such would constitute an appropriate program for Student.

Indeed, it appears that it is even unnecessary that I remand this matter to District’s C.S.E. with the direction that it conduct all appropriate evaluations and, thereafter, convene a Committee meeting to determine Student’s eligibility for special education services and, if found eligible, to prepare an appropriate special education program, as the District has already established that, having become aware of Parent’s referral of Student, has already taken the steps required of it to obtain parental consent and to proceed with evaluations. Thus, my issuance of an Order of Remand would grant nothing to Parents that Parents do not already possess (see Decision of the State Review Officer in Application of (Blank), Appeal No. 11-099). However, to assure Parents that their concerns will be appropriately addressed, I will issue such Order of Remand.

ORDER

Based upon the above review, it is HEREBY ORDERED that this matter is hereby remanded to District’s Committee on Special Education with the direction that it complete the necessary evaluations of Student and, thereafter, convene a meeting of the Committee on Special Education, with due notice to Parents of such meeting, and thereat determine the eligibility of Student to receive special education services; and it is

FURTHER ORDRED that, if such Committee determine that Student is eligible to receive special education services, such Committee is directed to prepare for Student an Individualized Education Program sufficient to meet Student’s needs.

Dated: April 2, 2012

JAMES P. WALSH, ESQ.

Impartial Hearing Officer

JPW:gc

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 RECORD ON MARCH 27, 2012

A. Parent’s Letter to Requesting SBST Meeting, dated 10-27-11 (1 page; Parents)

B. Copies of Email Exchanges between Parent and on 2-13 12 (5 pages; Parents)

C. Notice to Parents from AFBCS re: Grades (1); Student’s Report Card, Term One, dated11-10-11 (3 pages; Parents)

D. Letter to Parents, dated 10-14-11, Transmitting Interim Assessments Scores Parents for ELA and Math (1); Letter Transmitting Social Studies Scores (not attached) (1); Letter to Parents, dated 11-29-11Transmitting Science Score (1) (3 pages; Parents)

E. Evaluation of Student by, M.D., dated 11-12-11 (2 pages; Parents)

F. Copies of Email Exchanges between Parent and C. Carvajal between 3-15-12 and 3-16-12 (4 pages; Parents)

G. Copy of Email sent by to and, dated 3-16-12 (1); Attached Letter from to Parent, dated 3-16-12 (1) (2 pages; Parents)

H. Parent’s Consent for Evaluation, dated 3-23-12 (1); Parents Home Language Identification Survey, dated 3-23-12 (2) (3 pages; Parents)

1. Parents’ Due Process Complaint Notice, dated 1-3-12 (2 pages; DOE)

2. District’s Response to Parents’ Complaint, dated 2-7-12 3 Not Offered in Evidence (3 pages; DOE)

4. Letter to Parent from, dated 2-13-12DOE (1 page; DOE)