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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: October 23, 2012
April 22, 2013
May 28, 2013
Actual Record Closed Date: June 25, 2013
Hearing Officer: Rona Feinberg, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 23, 2012
CSE Chairperson’s Designee — DOE
Advocate — Parents
NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 22, 2013
CSE Chairperson’s Designee — DOE
Advocate — Parents
School Psychologist — DOE
(via telephone)
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 28, 2013
CSE Chairperson’s Designee — DOE
Advocate Mother — Parents
(via telephone)
School Psychologist — DOE
(via telephone)
Special Education — Parents
(via telephone) Itinerant Teacher
INTRODUCTION
On October 23, 2012, April 22, 2013 and May 28, 2013 I conducted an impartial hearing pursuant to the Individuals With Disabilities in Education Act (IDEA), 20 U.S.C. 1415(f)(1) regarding the education program of a school-aged child, (“the child”). The hearing commenced at 3:30 p.m., 12:50 p.m., and 10:07 a.m., respectively and was held at the Impartial Hearing Office, 131 Livingston Street, Brooklyn, New York. A list of witnesses testifying and documents received into evidence are attached to this Decision and Order.
BACKGROUND
The child, who is currently unclassified, and independently placed for . In a letter dated September 5, 2012, the child’s parents, by their advocate , filed a due process request for an impartial hearing. In that request the parents explained that at an “initial” Individualized Education Program (IEP) meeting on May 17, 2012 the Committee on Preschool Special Education (“CPSE”) team classified the child as with a Disability and developed an IEP mandating five hours a week of bilingual Yiddish Special Education Itinerant Teacher (“SEIT”) services. The Committee on Special Education (“CSE”) held an IEP meeting in June 2012 to develop an IEP for the child’s transition from preschool for the 2012-2013 school year. At that meeting the CSE team determined that the child did not require any special education services. The parents contested the validity of the June IEP meeting and the decision not to classify the child. They requested, among other things, an order that the CSE issue an assessment authorization for a bilingual Yiddish Neuropsychological Evaluation followed by another IEP meeting. They also requested an Order of Pendency (Parent’s Ex. A).
Following a pendency hearing on October 23, 2012 I issued an Order of Pendency for the Department of Education to continue to provide the five hours of SEIT services a week as mandated by the child’s May 17, 2012 CPSE IEP (HO Ex. I). The Department of Education subsequently conducted a evaluation of the child and at an IEP meeting held on January 17, 2013 again found that the child was not eligible for special education services (DOE Ex. 1). The District consented to the parents’ request to file an amended complaint. In that complaint dated February 21, 2013 the parents renewed their request for an assessment authorization for a bilingual Yiddish neuropsychological evaluation and also asked for an assessment authorization for a bilingual Yiddish psychoeducational evaluation followed by another IEP meeting (Parents’ Ex. C).
I was appointed as the Impartial Hearing Officer in this case on October 16, 2012. The original compliance date was November 20, 2012 and the case was scheduled for a hearing on October 23, 2012. Pursuant to a request by the parent at the conclusion of the hearing and with the agreement of the District the compliance date was extended to November 20, 2012 in order for the District to evaluate the child. Pursuant to a request by both parties on November 21, 2012 for the availability of witnesses the compliance date was extended to December 23, 2012 and a hearing date was scheduled for December 18, 2012. Pursuant to request by the District on December 10, 2012 and without objection by the parents the compliance date was extended to January 22, 2013 for the availability of witnesses and a hearing date was scheduled for January 3, 2012. On December 20, 2013 pursuant to a request by both parties the compliance date was extended to February 21, 2013 for the District to hold a CSE meeting to consider the results of the evaluation conducted by the District.
The parents subsequently requested permission to file an amended compliant and the District consented. The amended complained was entered on February 22, 2013. A hearing was held on April 22, 2013. At the conclusion of the hearing and at the request of both parties the compliance date was extended to June 7, 2013 and a hearing was scheduled for May 28, 2013. At the conclusion of the hearing and at the request of both parties the compliance date was extended to July 6, 2013 for the receipt of the transcript and the issuance of the Decision and Order. The compliance date was adjusted to Monday July 8, 2013.
All of the extensions in this case were granted after considering the cumulative impact of the factors enumerated in Section 200.5(j)(5)(ii) of the New York State Regulations of the Commissioner of Education (“Commissioner’s Regulations”) and a determination that there was a compelling reason for each of the extensions as required by Section 200.5(j)(5)(iii) of the Commissioner’s Regulations.
THE PARENT’ POSITION
The parents were represented at the hearing by their advocate . The parents alleged that the Department of Education improperly determined that the child did not require special education services and asked that the Department of Education be ordered to issue an assessment authorization for a bilingual Yiddish neuropsychological evaluation followed by another IEP meeting to address the results of that evaluation.
THE DEPARTMENT OF EDUCATION’S POSITION
The Department of Education was represented at the hearing by . The Department of Education maintained that the bilingual Yiddish psychoeducational evaluation it conducted for the child was sufficient, that the CSE’s determination that the child did not require special education services was correct and that further testing was not required.
FINDINGS OF FACT AND CONCLSUIONS OF LAW
This recitation of my findings of fact are gleaned from the credited testimony and evidence presented at the impartial hearing.
TARA is a New York State certified school psychologist and has a Master’s Degree in education and school psychology ( : 17 is a New York State certified bilingual Yiddish school psychologist and has a Master’s Degree in school psychology (Graus: 75-76). Both Ms. and Ms. currently work for the Department of Education at CSE 8 ( : 17; Graus: 76-77). has a Master’s Degree in special education from birth through grade 12 with a bilingual Yiddish extension. She is currently a SEIT with the OMNI agency ( : 125-127). is the child’s mother ( : 160-161).
At the time of the impartial hearing the child was five and a half years-old ( : 160). The child has siblings and interacts with them appropriately at home ( : 165-166, 175, 189-190). In October 2011 Ms. opened a case with CPSE for the 2011-2012 school year because the child’s teachers told her that the child was not doing well in the classroom. In particular, the teachers told her that the child rocking, “ ” and not participating ( : 161-162, 186-187). The teachers also reported that child was not following the daily routine ( : 167).
The child’s first CPSE meeting was held in January 2012 and no services were provided for the child. OMNI arranged another meeting after which a CPSE IEP dated May 17, 2012 classified the child as a Preschool Student with a Disability and mandated five hours a week of bilingual Yiddish SEIT services ( : 163, 168; : 52-53; Parents’ Ex. B). After Ms. began providing the SEIT services the child’s teachers reported that she was making better eye contact and “playing with other” students ( : 164, 166). During that time the child knew her work and was able to do the worksheets correctly at home ( : 167).
Ms. conducted the child’s review in June 2012 as the school psychologist; there was no bilingual psychologist at the meeting. There was no testing or observation of the child done prior to the review. At the time of the June 2012 meeting the child was receiving SEIT services. Ms. participated by telephone but neither the child’s teacher nor the SEIT participated in the review. The team did not discuss the reports by the occupational and therapists because the child was not receiving those services at the time of the meeting. The CSE team considered evaluation that was conducted in December 2011 and the SEIT services on the CPSE IEP dated May 17 2012 (DOE Ex. 5). Although support services were recommended on the CPSE IEP and the CSE team did not have any additional information, it determined, based on Ms. s “clinical judgment” after reviewing the documentation, that the child was “non-handicap[ped]” and did not require the SEIT services. The parent was not provided with a document indicating that determination because the CSE was not adept at using SESSIS, the new computer system. However, Ms. explained to the parents that the decision not to classify the child was based on the December 2011 psychoeducational evaluation. ( : 19-22, 33, 34-35, 46-49, 51, 61-64; : 167-170). 1 On December 21, 2012 the child’s mother brought the child who administered a bilingual Yiddish evaluation to the child in a . At that time the child was receiving
Citations to pages 34-51 and 61- 65 refer to Ms. Shapiro’s cross-examination of Ms. . SEIT services. The child’s mother did not relay any specific academic concerns about the child. (Graus: 89, 111). Ms explained at the hearing how a bilingual assessment differs from a monolingual assessment and she stated that a child’s ability may actually be greater than indicated on the bilingual assessment because those assessments are not “standardized and normed” to the Yiddish population ( 82, 86, 92-9, 1063; 170-171; DOE Ex. 4). 2 The Wechsler Preschool and Primary Scale of Intelligence (“WPPSI”) indicated that the child “was at least” of average intelligence and the Woodcock Johnson academic assessment indicated that the child was on grade level in all of the subtests (Graus: 90-92, 94-95, 113-114; : 23-25; DOE Ex. 4). Ms. noted that the child has a November birthday and that although she is one of the younger students in the class she is able to “hold[ ] her own in the classroom.” She cited this fact as support for a finding of “ if not brighter” ( : 122). Ms. was not asked to do an observation of the child but she believed that an observation would have been “beneficial” ( : 87-88, 111).
Ms. ’ indicated on her report that the child “had good attention [and] concentration,” that she was a “ ” and that she was shy ( : 25; 95-96; DOE Ex. 4). The report notes, among other things, that the child had appropriate eye contact and responded to questions appropriately in full sentences ( : 97-98, 103-104; DOE Ex. 4).
Ms. reviewed the child’s prior p evaluation, the report from the SEIT and perhaps “something” by the child’s teacher and she explained why she did not believe that the child required a more in-depth assessment ( : 101-102). In particular she noted that based on the child’s IQ and the way that she “presented” the evaluation ruled out any “ .” She also noted that shyness is not a pathology ( : 101-102, 117). Ms. told the child’s mother that the child would not qualify for services ( 172).
There was another CSE review on held on January 17, 2013. Ms. again participated as the school psychologist and there was no bilingual psychologist at the meeting. Neither an observation nor a social history was done prior to the review. ( : 19, 50). The team reviewed Ms. evaluation report, a report from the SEIT, dated
Citations to pages 106-120 refer to Ms. ’s cross-examination of Ms. December 16, 2012, and a handwritten untitled document by the child’s teacher,[3] ( 2527, 29; : 173; DOE Ex. 2). The parents did not request that the SEIT participate at the CSE meeting but Ms. nd the child’s mother, the only participants who actually knew the child, both participated by telephone; Ms. was not sure whether she was on the phone when Ms. participated in the meeting. At the meeting Ms. did not indicate that the child had any academic delays but rather focused on the child being shy and a “little anxious” and her “not really interacting with peers” ( : 27, 43-44, 59-60; : 175176183-184; DOE Ex. 1 at 3). The SEIT’s report indicated, among other things, that the child’s “awkward behaviors” were negatively impacting on her academic, social and emotional development and that her “anxiety and introversion” were preventing her from making effective progress during the school day ( : 42; : 134-135; DOE Ex. 3). The team discussed the concerns in the SEIT’s report and made suggestions to the parent about ways to address these issues outside of the school day ( : 32, 43).
Ms. acknowledged that in considering the classification of a child a CSE team would consider both academics and a in the classroom. She also acknowledged that a child’s social/emotional functioning in the classroom might affect a child’s overall education and performance in school ( : 37-38). However, at the conclusion of the meeting the team determined that the child was “non-handicap[ped]” because it did not believe that her “ were significant in that those traits were not impacting her academically in the classroom ( : 28-29, 38). This determination was based on the testing the fact that Ms. did not report any academic delays ( : 38-39). However, Ms. ’s letter indicated that the her from excelling academically” (DOE Ex. 2).
Ms. testified that although the child’s academic functioning was assessed while receiving five periods of SEIT a week, the team indicated at the review that the teacher “could do the same thing that the SEIT was doing” ( : 41, 63-64). Neither Ms. nor the child’s mother agreed with that decision. Both of them felt that the child could “still benefit” from SEIT services ( : 31-32; : 192).
Ms. is the child’s SEIT and works with her five hours a week. She worked with the child in May and June 2012 and then began again in October or November 2012. In May 2012 she worked with the child at preschool, both in and out of the classroom ( : 127-128, 131, 139-140).4 At that time the child’s greatest issue was that her “severe anxiety” was preventing her from functioning in the classroom. The child did not interact with either her teacher or her peers but rather stood “on the side” and observed throughout the day; she did not speak in class ( : 128-131). Physically, when the child , she would put and she would .” Ms. has observed similar behavior outside of school as well, when the child is around children she does not know ( : 130; : 175). Ms. worked with the child one-to-one using role modeling for social skills and talking about emotions ( : 128-129, 140).
The child’s current class has 26 students, a teacher and an assistant teacher ( : 152). When Ms. began working with the child at the beginning of October or November 2012 she did not see much progress from the prior spring. The child’s teacher told Ms. that she had “no clue” as to what the child was gaining in class. The first few months of the current school year were very difficult. Ms. worked with the child at the same level she addressed in May 2012 and then “moved up.” About two months prior to the impartial hearing the child began picking up the skills and carrying them over to the classroom. The child still four students with whom the child feels comfortable and she will interact with them only when she “decides” to do so ( : 134).
Ms. works with the child five hours a week over a period of four days, part of the time outside of the classroom and part of the time inside the class during “center time” or “free play” ( : 143-144). Ms. uses role modeling and encouragement to get the child to self-advocate in the classroom. Sometimes the child will raise her hand to get the to recognize that he has an issue, such as not having received her cereal in the morning ( : 151-152).
Ms. believed that the in academics. She explained that when she “preteaches” the child and reviews the material with the child one-on-one it is clear that the
Citations to pages 139-156 refer to Ms. cross-examination of Ms. . child knows the material. She noted that the child does not ask questions if she does not understand what is “going on” in the classroom but rather “assumes things and copies whatever her peers are doing” ( : 135-136). However, in a one-to-one situation the child does not show that she displays in a group setting and she will actually tell Ms. when she does not understand something ( : 136). Thus, she believes that one-on-one is “very important” for the child because that is the situation in which she “feels secure” ( : 137). Ms. collaborates with the child’s teachers and tries to speak to them every day that she works with the child at school. She tells the teachers what her goals are for the child and they “try to carry through”; she also speaks to the child’s mother at least twice a month ( : 132, 138-139153-153; : 166). The child is in the “middle” of her class academically and remains at the “status quo” as long as Ms. is pre-teaching and reviewing ( : 138). Ms. did not believe the assistant teacher could take her place because when Ms. returns after having been “off” the child is more reserved and introverted. The child’s teacher told Ms. that the child is “different” on the days that she is not there ( : 157).
The parents have never taken the child to a neurologist but they took her to a psychiatrist twice, in April and June 2012 ( 178-180). The psychiatrist told Ms. that “ ” was preventing her from : 180). He recommended that the parents get the child help for speech and a SEIT but he did not issue a formal report and Ms. did not tell the CPSE about the : 181-183).
The handwritten letter introduced by the Department of Education and unsigned. However, the parties agreed that the letter was written by the child’s current teacher, Ms. , and that it was considered at the January 17, 2013 IEP review ( : 27; : 173). The letter describes the child that if she is joined by more than one or two girls at a time to play .” The child joins group activities only when she is prepared to do so by the SEIT and then her participation is only minimal. During class discussions the child “sits and stares” and if she is called on she does not know the answer to the question. However, working one-on-one she knows her work “beautifully.” If she is pre-taught a lesson she will respond when called on but only ” and “short 1-2 word answers.” If there is a change in the routine of a lesson he child her from excelling academically” and opines that the only way the child can excel in the classroom is with the SEIT (DOE Ex. 2).
DECISION AND ORDER
Federal and state regulations provide that under certain conditions, a parent has the right to an independent educational evaluation at public expense if the parent disagrees with an evaluation obtained by the public agency. If a parent requests an independent educational evaluation at public expense, the public agency must either file a due process complaint to request a hearing to show that its evaluation is appropriate or, without unecessary delay ensure that an independent educational evaluation is provided at public expense. The Disrict need not pay for the evaulation if it demonstrates in an impartial hearing that the evaluation obtained by the parent did not meet agency criteria.
34. C.F.R.300.502 (b)(1)(2); 8 NYCRR 200.5[g]; Application of a Child with a Disability, Appeal No. 11-074; Application of a Child with a Disability, Appeal No. 11-001.
It is clear that the child’s parents did not agree with the results of the psychoeducational evalulation admisinstered by the District and that the District did not move for an impartial hearing to contest the parents’ position. Moreover, the due process complaint filed by the parents on September 5, 2012, prior to the psychoeducational evaluation, asked for assessment authorizations for both a bilingual Yiddish psychoeducational evaluational and a neuropsychological evaluation. However, after the pendency hearing the Department of Education conducted only the former. I find that the evidence and testimony at the hearing support a conclusion that the parents are entitled to an assessment authorization for a neuropsychological evaluation in order to provide additional evidence as to whether the child’s apparently severe anxiety in the classroom is impeding her educational performance and/or her social and emotional development to the extent that special education services should be mandated. In making this determination I note that I also find that only if an independent evaluator determines that sufficient time has passed since Ms. evaluation to make an accurate assessment of the child, the parents are entitled to an assessment authorization for a bilingual Yiddish evaluation as well.
It is also apparent from the evidence and from the testimony by both Ms. , the child’s SEIT, and Ms. , the Department of Education psychologist that administered a psycho-educational evaluation to the child, that the child’s issues are evident in a group and not in a one-on-one situation. Thus, I find that a classroom observation was imperative in this case and that one should have been conducted prior to the June 2012 and January 2013 IEP meetings at which the CSE twice found that the child was not eligible for special education services. Indeed, even Ms. , who evaluated that child, testified that an observation would have been beneficial /helpful to the process.
Therefore, it is hereby Ordered that:
1) Immediately upon receipt of this Decision and Order The Department of Education is to provide the parents with an authorization assessment letter for a bilingual Yiddish evaluation of the child.;
2) If an independent evaluator determines that that sufficient time has passed since the child’s December 21, 2012 Department of Education is to immediately provide an authorization assessment letter for a bilingual evaluation;
3) As soon as the child is in a classroom situation the Department of Education is to arrange for a classroom observation of the child;
4) Immediately upon receipt of this Decision and Order the Department of Education is to obtain a Social History from the parent; and
5) Within 14 days of the completion of the evaluation(s), the classroom observation and the Social History the Department of Education is to convene a CSE meeting to consider whether those reports warrant classifying the child as a special education student and if so, to develop an appropriate IEP and determine the appropriate services to be mandated. Dated: July 8, 2013
RONA FEINBERG, ESQ.
Impartial Hearing Officer RF: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
Parent:
Exhibit A Parents’ Impartial Hearing Request
dated September 5, 2012, 3 pages
Exhibit B Preschool Individualized Education
Program dated May 17, 2012, 10
pages
Exhibit C Parents’ Amended Impartial Hearing
Request dated February 21, 2013, 3
pages
Exhibit D Occupational Therapy Evaluation
dated May 15, 2012, 6 pages
Exhibit E Bilingual Evaluation dated
December 12, 2011, 4 pages
Department of Education:
Exhibit 1 Individualized Education
Program (Ineligible for Special
Education) dated January 17, 2013, 3
pages
Exhibit 2 Untitled handwritten document
undated, 1 page
Exhibit 3 Letter from dated December 16,
2012, 2 pages
Exhibit 4 Bilingual Evaluation dated
December 21, 2012, 4 pages
Exhibit 5 Bilingual Evaluation dated
December 8, 2011, 4 pages
Hearing Officer
Exhibit I Order on Pendency dated October 31,
2012, 3 pages
Footnotes
[3] The transcript and the January 17, 2013 IEP refer to the child’s teacher as “ ” and she is referred to by that name in this Decision and Order. However, the child’s mother testified that the teacher’s name is : 174).