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: February 27, 2013

Actual Record Closed Date: March 5, 2013

Hearing Officer: Judith Schneider, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 27, 2013

Attorney — Student

Parents

District Representative — DOE

On February 27, 2013, I conducted an Impartial Hearing at the New York City Department of Education (“DOE”) Impartial Hearing Office, 131 Livingston Street, Brooklyn, New York, pursuant to the Individuals with Disabilities Education Improvement Act (“IDEIA”), 20 U.S.C. §1415, and Article 89 of the Education Law of the State of New York, regarding the special education program of XXX (“the student”).

The proceeding was initiated at the request of the parent by correspondence dated December 29, 2012. (Ex. A) I was appointed Impartial Hearing Officer on January 3, 2013. I was available to conduct a hearing within 14 days. At a telephone conference with the parties conducted on February 6, 2013, after the conclusion of the resolution period, the initial hearing was scheduled for February 27, 2013, the first mutually available date for the parties and the hearing officer. (T. 7, Ex. I)

The current compliance date is April 12, 2013.^[1] The record closed on March 5, 2013, upon my receipt of the transcript. Lists of persons who appeared and documents submitted are appended.

Background and Positions of the Parties

The student is and his current disability classification if . (Ex. C) The parent questions that classification. (Ex. A)

The student is currently in in a special education program (12 months) with related services in a District school. (Ex. D)

The parent disagreed with the special education program provided by the DOE during the 2010-2011, 2011-2012 and 2012-2013 school years and filed an impartial hearing request, dated December 29, 2012, making various claims and seeking certain relief. (Ex. A) In her request, asked for an Independent Educational Evaluation (“IEE”).

At the hearing, with the consent of the DOE, the parent withdrew all claims and requests without prejudice but for the parent’s claims that the student is entitled to:

1) an immediate independent evaluation (“ ) which shall include consideration of the parent’s need for parent training ;

2) a prompt evaluation which shall consider all including and shall consider the needs at home as well as in school and address the issue of the need for parent training and counseling with regard to issues;

3) a functional behavior assessment (“FBA”) and, if necessary, a ”) to be conducted/developed by the CSE within two weeks of its receipt of the evaluation;

4) a prompt CSE review to consider the student’s educational program and placement after review of the above-specified evaluations/assessments and such other evaluations as it may deem are relevant and which it will provide to the parent. (T. 9-11)

The parent asserts entitlement based upon the student’s needs and, with regard to an independent also upon entitlement pursuant to 8 NYCRR 200.5(g) which provides an independent evaluation if there is unreasonable delay in responding to the parent’s request for one.

At the hearing, the DOE did not contest entitlement to the requested evaluation, an FBA and if necessary a BIP, and a CSE re-convene. Further, the DOE did not contest the student’s need for and entitlement to a . However, the DOE contests provision of an independent evaluation. (T. 17-19)

Findings of Fact and Conclusions of Law

The persuasive evidence shows the following:

The student has been diagnosed with, among other things ( ), and . (Exs. MM, NN) The Vineland Social-Emotional Early Childhood Scale, obtained when the student was about old indicated that the student’s interpersonal relationship score was at the percentile, that his composite score was at the percentile, and that his play and learning themes score was below the percentile. (Ex. GG)

The student has a long history of which is known to the DOE. (T. 25, Exs. Q, R, S, U, X, FF, HH, JJ, LL,MM) That since his March 21, 2012 IEP, reported by school officials to have occurred on a daily basis, and . (T. 28, 36, Exs. G, J, T, U) The parent has been called to the school on , on so he would be taken to .” (T. 25, 30, 31, 36, 37) involving school staff and students, included with school bus personnel and others continued through February 2013. (T. 26, 28, 37) The school social worker has called the since January 2, 2013 concerning the . (T. 28)

The student’s last evaluations were conducted in November 2009. (T. 19-20, Exs. KK, LL) The parent was not aware of an FBA ever having been conducted and no evidence of one was submitted. (T. 34) The DOE acknowledges that there has been no FBA or BIP for at least several years. (T. 43)

On December 29, 2013 the parent, by counsel, made a written request for an IEE with regard to a neuropsychological evaluation and specified inadequacy evaluations, the parent’s concern concerning misclassification and ongoing behavior. (Ex. A) The DOE neither provided the evaluation nor filed an impartial hearing request with regard to the issue. (T. 44)

Based upon the foregoing, I conclude that the parent is entitled to an independent neuropsychological evaluation.

First, I conclude that that the delay in providing the IEE or seeking an impartial hearing to challenge the request was unreasonable in the circumstances here. I note with regard to my determination of unreasonable delay the long history of severe behaviors which was continuing subsequent to the December 29, 2012 IEE request with no effort in evidence to undertake DOE evaluations subsequent to the request or conduct an FBA or develop a BIP. Accordingly, the parent is entitled to an independent evaluation pursuant to 8 NYCRR 200.5(g)

Second, the DOE has conceded that a is required. I conclude that an independent evaluation is appropriate in the circumstances of this case. With regard to this finding, I note that the evidence shows that DOE evaluations are generally performed by vendors who are not DOE employees and the DOE is unable to assure when it can complete a (T. 43-44) A to ensure that it will be completed in sufficient time to enable a prompt CSE review to determine an appropriate program and locate an appropriate placement for the 2013-2014 school year. Under §§1412 and 1415 of the IDEA, a free appropriate public education is available to all children with disabilities residing in the State between the ages of 3 and 21, and courts and hearing officers have broad authority to grant such relief as they deem appropriate. 20 U.S.C. §§1412(a)(1), 1415(i)(2)(C)(iii); Forest Grove Sch. Dist. v. T.A, 129 S. Ct. 2484, 2492 (S. Ct. 2009); Frank G. v. Bd. of Educ., 459 F.3d 356, 371 (2d Cir. 2006). See also Appeal No. 11-127.

ORDER

1) The DOE shall pay for an independent evaluation which shall include consideration of the parent’s need for parent training and upon the submission of appropriate credentials and evidence that the fee charged is the provider’s usual and customary rate for the evaluation provided.

2) The CSE shall promptly conduct a evaluation which shall consider all speech issues including echolalia and shall consider the needs at home as well as in school and address the issue of the need for parent training and with regard to issues.

3) The CSE shall conduct a functional behavior assessment (“FBA”) and, if necessary, develop a (“BIP”) within two weeks of its receipt of the evaluation.

4) The CSE shall promptly reconvene to consider the student’s educational program and placement after review of the above-specified evaluations/assessments and such other evaluations as it may deem are relevant and which it will provide to the parent.

Dated: March 18, 2013

__________________________

JUDITH SCHNEIDER, ESQ.

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

Within 35 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.

If the parent plans to appeal the decision, a notice of intention to seek review shall be personally 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 so that a certified copy of the hearing record may be prepared for submission by the school district. If a school district plans to appeal the decision, the district shall file a certified copy of the hearing record together with its petition.

An appealing parties' petition for review shall be personally served upon the opposing party 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. (8 NYCRR § 279.2(b))

The rules of procedure for proceedings before a SRO are found in Part 279 of the Regulations of the Commissioner of Education available at http://www.sro.nysed.gov/part279home.html.

DOCUMENTS ENTERED INTO THE RECORD

PARENT

A Demand for pro process, dated 12/29/12, 8 pages B DOE due process response, dated 1/4/13, 4 pages C IEP, dated 3/21/12, 16 pages D IEP, dated 3/21/12, 14 pages E IEP, dated 4/7/11, 15 pages F Letter to Whom it May Concern from , 1/4/13, 2 pages, G Letter Provider from , dated 5/21/12, 1 page H Final notice of recommendation, dated 3/21/12, 1 page I Report to families first trimester, dated 2/12/13, 2 pages J Progress report, academic, social, emotional, progress, dated 11/14/12, 1 page K IEP progress report, dated 11/14/12, 3 pages L Interim reporting form, dated 2/12/13 1 page M Progress report , 2011/2012, 2 pages N 2012/2013 ABC data collection sheets, 9/13/12 through 1/3/13, 18 pages O statement, dated 11/15/12, 1 page P statement, dated 9/13/12, 1 page Q Daily behavior monitoring Sheet, dated 10/12/12, 1 page R report, dated 10/9/12, 1 page S report, dated 9/21/12, 1 page T Anecdotal Report, 4/18/12 through 6/19/12, 21 pgs. U 2011/2012, ABC data collection sheets, 3/23/12 to 6/25/12, 21 pages V Emergency intervention log, dated 5/21/12, 1 page W Individual attendance report, 1/4/13, 1 page X Letter from parent requesting Records 10/10/12, 2 pages Y Letter from parent regarding bus incident dated 10/10/12, 2 pages Z Letter from parent regarding bus incident, dated 9/21/12, 2 pages AA Parent workshops, 2012/2013, 1 page BB Parent Workshops, 2011-2012, 1 page

CC WITHDRAWN

DD Social, 3/22/09, 2 pages EE E1, Social history cover sheet 1/29/09, 1 page FF Social history update, 1/29/09, 4 pages GG Rpt. including Vineland scales result, dated 2/09/09, 6 pages HH Letter from , PhD, dated 8/5/09, 2 pages II Audiology report, dated 9/10/09, 1 page JJ Pediatric neurodevelopmental Assessment, dated 10/27/09, 6 pages KK Bilingual Evaluations, dated 11/3/09, 8 pages LL Bilingual Report, dated 11/05/09, 6 pages MM evaluation, dated 11/12/09, 7 pages NN Educational Report, dated 11/16/09 OO Ctr.- - Team Conference dated 1/21/10, 1 page

DEPARTMENT OF EDUCATION

None

IMPARTIAL HEARING OFFICER

I Prehearing Conference Memo, 1 page II Compliance Date Extension Decision

Footnotes

[1] The initial compliance date in this matter was March 13, 2013. The parties moved to extend the compliance date to enable consideration of the transcript and record and the issuance of the decision. In considering the requests I weighed the cumulative impact of the relevant factors and concluded that need for appropriate consideration of the record of this matter in accordance with the requirements of due process was greater than the effect of any delay in resolution. Accordingly, the joint request for extension of the compliance dates was granted. (T. 46, Ex. II)