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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: February 25, 2013
March 11, 2013
Actual Record Closed Date: March 11, 2013
Hearing Officer: James McKeever, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 25,
2013
, REPRESENTATIVE (VIA TELEPHONE)
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 11, 2013
For the Student
, PARENT
MS. , GRANDPARENT
MRS. , GREAT GRANDPARENT
For the Department of Education
, REPRESENTATIVE
MS. , TEACHER
, TEACHER
PROCDURAL BACKGROUND
The DOE filed the Due Process Complaint (DPC) on January 31, 2013 seeking an Order permitting the Department of Education (DOE) to evaluate the Student for special education services over the objection of the parent. I was appointed to this matter on February 7, 2013. On February 25, 2013, a prehearing was held, the parent did not attend.
FINDINGS OF FACT
Based upon the evidence adduced at the Due Process Hearing, I make the following findings of fact:
The Student is an who has not been classified as a child with a disability. The Student attends and is presently in the for (Exhibits 3 and 4 and testimony ). The Student is currently functioning at the beginning level in reading and at level in math. The Student often and in the classroom (Testimony of teacher). The Student’s behaviors during this school year (Testimony of teacher).
During the 2010-2012 school year, the DOE provided the Student with Academic Intervention Services everyday and provided a reading specialist who pushed into the classroom and worked with the Student in a small group (Exhibit 2).
During the 2011-2012 school year, the DOE provided a “literacy staff developer” to work with the Student in a small group. In addition the Student was assigned to ,” which was an intervention used to address phonics and fluency. “Unfortunately [the Student] was unable to focus…” and the interventions were “unsuccessful” (Exhibit 2).
During the 2012-2013 school year, the “literacy staff developer” attempted to take the Student into her response to intervention group “ ,” which is a program that meets three times per week for 45 minutes periods and focuses on decoding, fluency and comprehension. The Student refused to join the group and became “ when prompted” (Exhibit 2).
The DOE referred the Student to the Committee on Special Education to be evaluated for special education services and requested that the parent consent to the evaluation. The parent refused (Testimony of ).
CREDIBILITY FINDINGS
I find that all of the witnesses’ who testified at the impartial hearing, testified in a credible manner.
CONCULSION OF LAW
Committees on Special Education (CSE) must conduct a full and individual initial evaluation prior to providing special education and related service to a child with a disability. 34 CFR section 300.301(a); 8 NYCRR section 200.4(b). An initial evaluation must assess all areas related to the suspected disability. 34 CFR section 300.304(c)(4); 8 NYCRR section 200.4.(b)(3). The evaluation must be sufficiently comprehensive to identify all of the child’s special education and related services needs. 34 CFR section 300.304 (c)(6); 8 NYCRR section 200..4(b)(6)9(x). The evaluation is not sufficient unless it provides the CSE with sufficient data to determine (1) whether the student is a child with a disability under Individuals with Disabilities Education Act (IDEA) and; (2) the education needs of the child. 34 CFR section 300.305; 8 NYCRR section 200.4(5)(ii).
Prior to conducting the initial evaluation, the CSE must obtain parental consent. 34 CFR section 300.300(a); 8 NYCRR section 200.5(b)(1)(i). If the parent does not provide consent, the district may obtain an evaluation by requesting a due process hearing 34 CFR section 300.300(a)(3)(i); 8 NYCRSS section 200.4(a)(8), 200.5(b)(1)(i)(c). In order to obtain an evaluation over a parent’s objection, the district bears the burden of proof to show that there is an adequate basis to suspect the existence of a disability, which impairs the child’s educational performance (Application of a Child suspected of Having a Handicapping Condition, Appeal No. 91-29). The district must also demonstrate what, if any, attempts were made to remediate the child’s performance (Application of a Child suspected of Having a Handicapping Condition, Appeal No. 94-1).
Here, the evidence shows that he Student is presently in the for the third time. The evidence also shows that the Student, who is and should be in the , is presently performing at the early level in reading and the level in math (Testimony of ). During the last three school years, the evidence shows that DOE provided additional academic interventions in order to remediate the Student’s performance. Unfortunately, the interventions were unsuccessful and that the Student’s increased when the classroom teacher’s attempted to increase his academic performance (Testimony of ). Accordingly, based on these facts, I find that the DOE has met it’s burden of proof in demonstrating that there is an adequate basis to suspect the existence of a disability, which impairs this Student’s education performance and that the DOE has demonstrated that they attempted to remediate the Student’s performance with additional academic interventions prior to making the referral to the CSE. As such, the DOE’s request to evaluate the Student for special education services over the objection of the parent is granted.
ORDERED
The DOE’s request to evaluate the Student for special education services over the objection of the parent is granted. Dated: March 18, 2013
JAMES MCKEEVER, ESQ.
Impartial Hearing Officer JM;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
District’s Exhibits:
1-Hearing Request 1-30-13 1 page
2- -records for 10-11, 11-12 and 12-13 school years 1 page
3-Report Card 10-11 school year 1 page
4-Report Card 11-12 school year 1 page