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: December 4, 2012

January 11, 2013

March 4, 2013

March 7, 2013

March 13, 2013

May 6, 2013

Actual Record Closed Date: May 29, 2013

Hearing Officer: Israel S. Wahrman, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 4, 2012

ESQ., Attorney (Via Telephone) — Student

DOE Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 11, 2013

ESQ., Attorney (Via Telephone) — Student

DOE Representative (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 4, 2013

Attorney - conference call — Student

District Rep - conference call — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 7, 2013

Attorney — Student

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 13, 2013

Attorney — Student

Parents

Parents

CSE Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 6, 2013

Attorney — Student

DOE Representative — DOE

BACKGROUND AND POSITIONS OF THE PARTIES

On January 4, 2013, I was appointed by the New York City Department of Education (DOE) as Impartial Hearing Officer, pursuant to the Individuals with Disabilities Education Act (IDEIA), 20 U.S.C. ϸ 1415 (b) (2) as well as Section 504 of the Rehabilitation Act, 29 U.S.C. ϸ 701 in the matter I am certified as an Impartial Hearing Officer by the University of the State of New York, Education Department. The hearing took place on the following dates: January 11, 2013 (prehearing conference), March 4, 2013 (prehearing conference), March 13, 2013 and May 6 2013. Extensions of the compliance date were granted to allow time to write legal briefs and then to review such briefs, as well as to allow time to receive the transcript and render a decision student who has been receiving her education at home, due to the difficulty in arranging her program, given the . Tr. 223-224, Exhibit B. As summarized by her parents’ attorney, drawing from various exhibits and testimony in evidence: “ is a seventeen year-old (Tr. 176) student who has been diagnosed with . Ex. B. She . Ex. C; Tr. 176-177. is , . Exs. B, F-L; Tr. 174-175. , she requires assistance as she is not steady. Tr. 176; 177-178. is in the area of academic skills. Exs. G, H.” Impartial Hearing Officer (IHO) Exhibit II .

This hearing was requested due to what the parents believed to be denial of a free and appropriate education (FAPE) for the 2012-13 school year, for various reasons, including a failure “to employ appropriate evaluation…” Exhibit A.

This IHO has previously issued an Interim Order, which resolved all issues of the hearing with the exception of the evaluations requested by the parents. IHO Exhibit I.

What remained of the original request for an impartial hearing was the request for a comprehensive independent evaluation.

DISCUSSION WITH REGARD TO INDEPENDENT EVALUATION

The obligation of the school district is to provide a disabled child with a Free and Appropriate Education (FAPE). With regard to how much benefit is required for the educational program to be considered as appropriate, the US Supreme Court concluded that a school district is not required to “maximize each child’s potential commensurate with the opportunity provided other children.” Board of Education v. Rowley, 458 U.S. 176, at 198. The third circuit, however, has held that an Individualized Education Program (IEP) must provide “meaningful educational benefit.” T.R. ex. Rel. N.R. v. Kingwood Township Bd. Of Educ. 205 F.3d 572, 577 (3d Cir. 2000). In Rowley, the case involved a student who was progressing nicely in regular education classes. With regard to a student attending special education classes, however, in Deal v. Hamilton County Board of Education, 392 F.3d 840 (2004), at 864, the sixth circuit court of appeals concluded that “At the very least, the intent of Congress appears to have been to require a program providing a meaningful benefit toward the goal of self-sufficiency, especially where self-sufficiency is a realistic goal for a particular child.” It should be noted that this “Deal Standard “ of what constitutes FAPE was cited without comment in a second circuit case, A.D. v. M.D. individually and on behalf of E.D., Plaintiffs v. The Board of Education of the City School District of the City of New York, 690 F. Supp. 2d 193 (2009), at 217. Also, further clarifying how much benefit is required to achieve FAPE, in Cerra v. Pawling, 427 F.3d 186 (2005) at 195, the Second Circuit, citing Walczak, 142 F.3d at 130 and Mrs. B., 103 F.3d at 1121, explained that a district fulfills its substantive obligations if its IEP leads to progress and not regression and a district court in evaluating whether a district has met its obligation, must examine the record for “objective evidence” of whether a child is likely to progress or regress under a proposed plan.

Counsel for the parent submitted a written brief with regard to the requested independent evaluation. Exhibit II. The representative of the DOE ultimately asked to discuss the independent evaluation at an additional hearing date rather than submit a written brief on this subject. Tr. 276.

s last evaluation conducted by the DOE consisted of a Vineland Adaptive Behavior Scale (this is a structured and standardized interview which taps adaptive functioning), as well as a parent interview, teacher interview, observation and review of records, as indicated in the DOE’s Report of June 28, 2012, Exhibit F. Given the severity of s disabilities, parents are requesting that this IHO order a more comprehensive independent evaluation, to assess her abilities more fully. IHO Exhibit II, Tr. 281-284. The DOE’s last evaluations were conducted by bringing her special education teacher support services (SETTS) teacher to an office, where an instructional session was watched. Tr. 218-223.

The DOE has the burden of proof and elected not to defend its evaluation procedures. Given the severity of ’s disabilities, the parents’ request for comprehensive evaluations appears perfectly reasonable. The regulations require school districts to conduct Evaluations. The regulations also speak to reevaluations. 8 NYCRR 200.4 (b).

The regulations provide for the use of a “variety of assessment tools and strategies… to gather functional, developmental and academic information about the student that may assist in determining whether the student is a student with a disability and the content of the student’s individualized education program, including information related to enabling the student to participate and progress in the general education curriculum.” Ibid.

The regulations also provide that “no single measure or assessment is used as the sole criterion for determining whether a student is a student with a disability or for determining an appropriate educational program for a student” 8 NYCRR 200.4 (b) (v) and that “the student is assessed in all areas related to the suspected disability, including, where appropriate, health, vision, hearing, social and emotional status, general intelligence, academic performance, vocational skills, communicative status and motor abilities.” 8 NYCRR 200.4 (b) (vii).

For a student with such an extreme disability has, it appears that thorough evaluations are an indispensable component of provision of a providing a FAPE. Perhaps with the benefit of a more thorough evaluation, strategies for greater integration into the mainstream could be realized. Today, this student is not even attending a school at all; there is a long way to go with regard to greater integration of this student into the mainstream. The entitlement of parents to independent evaluations is found in 8 NYCRR 200.5 (g). In addition, an IHO has the authority to order such evaluations. Ibid., Application of a Child with a Disability, Appeal No. 01-076, Application of a Child with a Disability, Appeal No.02-005.

All the parents are still seeking, which goes beyond what the parties have already agreed to, is independent evaluations in the student’s areas of disability. I will order such evaluations so that the student’s educational and program can be directed in a manner so as to be appropriate, as required by the state’s regulations. The request of the parent for such evaluations appears reasonable and appropriate and this IHO will therefore order these evaluations. With regard to the psycho-educational or educational evaluation to be carried out, note that the DOE’s representative agreed to the reasonableness of the rates listed below in the Order. Tr. 283-284. With regard to the assistive technology evaluation, counsel proposed that the evaluation be conducted “by the AT service providers who are with [YS] pursuant to the related service authorization (RSA) “ Exhibit II-14, or alternatively at the rate charged by AT experts who have been utilized in the past for such evaluations, which is in the $4,000 to $5,000 range. Tr. 284-288.

ORDER

1. The DOE is hereby ordered to fund independent evaluations for YS, to be selected by YS’s parent, as follows:

a. An assistive technology evaluation to be conducted by an individual with expertise in assistive technology, to be paid using the rate paid to assistive technology professionals under RSAs. Alternatively, an Assistive Technology evaluator should be utilized with the payment for this service capped at

$5,000.

b. Related services – Independent evaluations are to be carried out with regard to occupational therapy, physical therapy and speech and language. The DOE is to fund such evaluations conducted by professionals who charge the customary rates, in private settings, through agencies or hospitals.

c. Physical Evaluation – The DOE should fund a physical evaluation conducted by a licensed physician.

d. or educational evaluation – The DOE shall pay up to $200 per hour of testing and up to $150 per hour for other activities, to be capped at $1,200 per day.

e. While it is expected that the parents will make a good faith effort to obtain the above evaluations as soon as they can reasonably be arranged, recognizing the difficulty in arranging such evaluations, particularly for a student with severe disabilities such as is the case the parents shall have up to six months from receipt of this order to arrange the independent evaluations to be funded by the

DOE.

f. All items Ordered by this IHO in the Interim Order of March 29, 2013 remain in effect. IHO Exhibit I. Dated: June 11, 2103

______________________________

ISRAEL S. WAHRMAN, ESQ.

Impartial Hearing Officer IW;mv

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 Amended Hearing Request 11/30/12, 16 pages B IEP dated 6/9/11 ,23 pages C Letter from . 7/5/12, 2 pages D Initial hearing request, 10/1/12 E Impartial hearing decision, 2/23/12, 9 pages F Triennial evaluation, 6/28/12 G Mid-year progress report, , 1/11/13, 4 pages H augmentative Communication report, 1/22/13, 4 pages I Assistive technology progress report 12/22/12. 3 pages J progress report, 1/10/13, 2 pages K Progress report, O. Omerind, 1/7/13, 2 pages L PT progress report, undated, 2 pages

DEPARTMENT OF EDUCATION

1 Email from K. Gorman, 3/8/13

IHO

I Interim Order, 3/29/13, 4 pages II Memorandum of Law In Support of the Parents’ Request for Independent Educational Evaluations