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CORRECVTED FINDINGS OF FACT AND DECISION
Case Number:
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: June 22, 2012
July 19, 2012
July 20, 2012
Actual Record Close Date: August 3, 2012
Hearing Officer: Michael S. Lazan, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 22, 2012
Parents
District Representative — DOE
School Psychologist (via telephone) — DOE
Special Services Coordinator — DOE
Classroom Teacher — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 19, 2012
Advocate — Parents
Parents
District Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 20, 2012
Parents
Parents
Psychologist (via telephone) — Parents
District Representative — DOE
On May 8, 2012, this IHO was appointed to hear the above after the recusal of other IHOs pursuant to the 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. This is a case filed by the parents by Due Process Complaint dated May 7, 2012.
A prehearing conference was scheduled for June 7, 2012. A prehearing conference summary and order resulted therefrom. (IHO Exh. 1) Hearing dates were held on June 22, 2012; July 19, 2012; July 20, 2012. On July 9, 2012, the parties moved to extend the timelines because of the need for additional case preparation. This IHO determined that the applications for extension were consistent with the regulatory requirements in 8 NYCRR Sect. 200.5(j)(5)(ii) and granted this application extending the decision date to August 8, 2012. (IHO Exh. 2) The record close date was August 3, 2012, the day that this IHO received the final transcript.
FINDINGS OF FACT
The Student has just completed the at where he has been since . (204) The Student has not wanted to go to school during his his work for . (204) In grade, the Student is able to . (121) He is in math, in reading. (122) The Student showed progress in reading. (121-122) The Student attends a general education classroom. (122) The Student received a in math for two marking periods. (155-157) He regrouping , not . (157) relate to not really adding details to answers. (159)
The Student went to a in November, 2011. (207; Exh. E) The recommended a be done because challenges were found with respect to . (208) The also recommended a central auditory processing evaluation. (208) This evaluation was provided to the school. (208)
An IHO Order by James Walsh ordered that the District complete necessary evaluations and convene a meeting of the CSE to determine the Student’s eligibility. (Exh. G)
A evaluation conducted in April, 2012 indicated that the Student performed in the high average range cognitively. (56) All academic skill sets were found to be average. (57) The Student tried hard and demonstrated an sight word vocabulary. (57) No or were found. (58) He was . (58)
An observation revealed no issues with the Student. (59-61)
A vision therapy evaluation was conducted of the Student in which the Student was found that have deficits. (218; Exh. I)
The IEP meeting was held without a neuropsychological evaluation. (62) The District asked for the evaluation but had not received anything. (63) The parent requested that the meeting be rescheduled that morning. (69) The District decided to go ahead with the meeting and reconvene if new information was forwarded. (63) The District was concerned that it be in compliance with an IHO Order. (69) There was no parent member at the meeting because the District felt it was not a full CSE review. (64) The team felt the Student was not eligible because the were so significant. (65) The parents felt unable to participate because they did not have a finalized neurological report. (216)
The of the Student dated June 20, 2012 indicated that the Student’s overall verbal abilities, visual perceptual abilities are general intellectual skills were fine. (235236; Exh. F) The examiner indicated that the Student was , , and had . (236-242) On the NEPSY-2, he was shown to . (243) He has . (244) BASC-2 testing found clinically . (248-249) She indicated that the Student meets the criteria for , combined type and anxiety disorder. (255) She recommended an , an , evaluation. (264)
The Student was given a promotion in doubt letter in March, 2012. (200) The Student has received two different promotion in doubt letters and other letter indicated significant concerns with the Student’s performance. (216; Exh. D, K, M)
The Student’s report cards for November, 2011 indicated that the Student received a 1 in math, a 1 in social studies. (Exh. C)
The parents had not received the Student’s report card as of the time of testimony. (216)
An occupational therapy evaluation was conducted of the Student on June 29, 2012. (Exh. N) This evaluation recommended that the Student receive occupational therapy to address .
CONCLUSIONS OF LAW
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.
The District has a duty to assess students in all areas of suspected disability, including, where appropriate, “social and emotional status,” “academic performance,” “communicative status and motor abilities.” 8 NYCRR Sect. 200.4(b)(6)(vii). The District also has a duty to review existing evaluation data on the child, including current classroom-based, local or State assessments, classroom based observations, and observations by teachers and related services providers. 34 CFR Sect. 300.305(a)(1)(i)(iii)
Here, the CSE did not assess the Student in all areas of suspected disability in connection to the review of May, 2012. In particular, the CSE did not conduct a neuropsychological evaluation, auditory processing evaluation, or occupational therapy evaluation, as recommended by the Student’s neurologist. Moreover, the CSE did not review the Student’s neurological report, although this report had been provided to the District by the parent. The record indicates that the and should be fully assessed to determine the full extent of his academic issues.
The District contends that it had to conduct a CSE review in May because of time constraints placed upon it by an IHO order. However, there is nothing in the record to substantiate this claim. Additionally, the District could have reconvened after the instant Complaint, reviewed the neuropsychological report or the occupational therapy evaluation, and provided new recommendations for the Student. No such review has apparently occurred.
While there is no evidence that the composition of the IEP team had any impact on the Student’s review, I do agree that the parents were denied the ability to meaningfully participate in the review. The parents sought review of additional evaluations before determining eligibility and the District did not heed the parents’ request.
The parents request that I classify the Student as eligible for services and order such relief as a “Nickerson letter,” but under these circumstances, where all assessments of the Student are still not yet complete, this is the responsibility of the CSE. Application of a Student Suspected of Having a Disability, Appeal No. 05-069; Application of a Student Suspected of Having a Disability, Appeal No. 01-045 (SRO would not rule on eligibility without physical). As a result, I will order the District to conduct a Central Auditory Processing evaluation of the Student as per the Student’s neurologist within 15 days of this order and then reconvene the CSE to determine eligibility. Such CSE meeting shall consider all recent evaluations of the Student and shall occur prior to the beginning of school, 2012-2013. Under the circumstances, I will order that the CSE reimburse the parent for the evaluation that have been submitted herein and are necessary to fully assess the Student in all areas of suspected disability.
Dated: August 8, 2012
Corrected Date: August 15, 2012
_________________________________
MICHAEL S. LAZAN, ESQ.
Impartial Hearing Officer
MSL: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 Request for SBST Meeting and Testing, 10/27/11, 1 p.
B E-Mail Communications, 2/13/12-5/8/12, 35 pp.
C Report Cards, 11/1/11, 3 pp.
D Interim Assessment Scores, 5 pp.
E Dr. Report, 11/12/11, 2 pp.
F Report, 18 pp.
G Hearing Order, 4/2/12, 9 pp.
H Complaint, /57/12, 2 pp.
I SUNY Optometric Visual Skills Report, 6/14/12, 3 pp.
J Parent Letter, 5/4/12, 1 p.
K E-Mail Communications, 39 pp.
L IEP Meeting Attendance Sheet, 5/4/12, 1 p.
M Promotion In Doubt Letter, 6/8/12, 1 p.
N Evaluation, 4 pp.
O Evaluation Receipt, 1 p.
IMPARTIAL HEARING OFFICER
I Pre-Hearing Conference Order, 8/8/12, 3 pp.
II Timelines Order, 8/1/12, 1 p.