Impartial Hearing Decision

STATE OF NEW YORK

STATE EDUCATION DEPARTMENT

XXXXX SCHOOL DISTRICT,

Petitioner, v.

XX., on behalf of her minor child, XX, Respondent. x

FINDINGS OF FACT AND DECISION

The XXXXX School District (“the District”) filed a request for an impartial hearing on March 16, 2013, in order to challenge the request of XXXXX (“the parent”), the parent of XXXXX (“the student”), for an independent educational evaluation (“IEE”) of her son at public expense. Dist. Ex. 1. The parent requested the IEE on March 1, 2013. Pursuant to The Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. Sec. 1400 et.seq. and the Regulations of the Commissioner of Education, 8 N.Y.C.R.R., 200 et.seq., a pre-hearing conference was held on April 16, 2013, and a hearing was held on April 29, 2013. The District was represented by counsel and the parent was self-represented. Lists of the individuals who appeared and the documents that were entered into evidence are included in this decision. After the transcripts were received and reviewed for accuracy, the record was closed on May 28, 2013.

Extension of the Time Line

On April 16, 2013, the parties requested an extension of the time line. The parties requested that the compliance date be extended for thirty days from May, 17, 2013, to June 16, 2013 due to the parent’s request for additional time to receive all of her son’s educational records and to possibly retain the services of a lawyer who was reviewing the case. Upon consideration of the stated reasons and regulatory requirements, the compliance date was extended to June 16, 2013. Tr. 21,162-163, 232; IHO Ex.

I. Background

The student is a thirteen year old grader in the District’s high school/middle school. Tr. 40. The student’s classification for the 2012-2013 school year is XXXXX. Tr. 78. For the 2012-2013 school year, the student was receiving XXXXX and XXXXX as well as program and testing accommodations (2.0 time). Tr. 79, 80-81, 117. Prior to the Committee on Special Education (“CSE”) review for the 2013-2014 school year, the District conducted evaluations including a evaluation, educational evaluation, social history update and classroom observation. Tr. 46. The District last performed an therapy evaluation of the student on April 14, 2011, based upon which XXXXX services were discontinued. The CSE met on March 1, 2013, to make its recommendations for the student for the 2013-2014 school year. The CSE determined that the student no longer was eligible as a student with a disability. After the CSE meeting, on March 1, 2013, the parent requested independent educational evaluations. Dist. Ex. 7; Tr. 222. On March 5, 2013, in response to an inquiry from the District, the parent clarified that she was requesting a evaluation and an therapy evaluation at public expense. Dist. Ex. 8. The District then filed a Due Process Complaint to challenge the parent’s request. Dist. Ex. 1.

The District maintains that the April 14, 2011, therapy evaluation and the and educational evaluations performed and submitted to the CSE were complete and appropriate, thereby rendering further testing unnecessary. Tr. 40.

Further, upon hearing the parent’s explanation at the hearing, the District argues that the parent is challenging the educational evaluation results and that a evaluation does not address the skills that are part of an educational evaluation. Tr. 229-230. The parent argues that the testing is ambiguous, incomplete and does not explain the student’s level of performance in school. The parent also maintains that based on a previous examination conducted with the student in 2010, the evaluation included many of the same subtests performed in the District’s educational evaluation. Tr. 231.

The hearing in this matter is limited solely to whether the District’s evaluations are appropriate. The District’s Case

Ms. XXXXX XXXXX testified that she has been a certified school since 2003, and has been employed by the district in that capacity for nine years. Tr. 43-46. Ms. XXXXX is familiar with the student because she chaired his CSE meetings for the 2012-2103 school year and for the March 1, 2013 review, as well as performed the student’s re-evaluation. Tr. 46-47. Ms. XXXXX performs all of the evaluations for the District. XXXXX XXXXX performed the student’s educational evaluation. Ms. XXXXX was chosen to perform the educational evaluation because she is a special education teacher and the District “randomly assign[s] our students to each teacher, so they have an even distribution of evaluations each year.”

Tr. 48:10-13.

Ms. XXXXX received training in the preparation of evaluations in obtaining her graduate degree “as well as random conferences updating with new testing materials.” Tr. 48:14-18. Ms. XXXXX has conducted approximately three hundred evaluations for the District, about 30 per year. Tr. 48. Prior to evaluating the student, Ms. XXXXX researched the student’s file and recalled that one of the reports referenced a diagnosis of (“ ”). Tr. 104:6-13; 24-25; 105:2-3.

Ms. XXXXX used the following instruments for the student’s evaluation:

The Wechsler Intelligence Scale for Children, Fourth Edition (“WISC IV”); the Behavior Assessment System for Children, Second Edition (“BASC-2”), Incomplete Sentences Blank, clinical interview, and Conners Rating Scales for the teachers to complete. Dist. Ex. 3-1; Tr. 49-50.

Ms. XXXXX testified that she administered the tests to the student in a conference room, one to one. She described the student’s behavior during the testing period as appropriate, but noted that “he did seem tired. And I asked him if he wanted to continue at one point, because he was yawning. And he said he did, so we continued.” Tr. 51:2-5. During Ms. XXXXX ’s interview with the student he was cooperative, friendly and made good eye contact. Tr. 76: 15-17.

Ms. XXXXX testified that if the evaluation or the results are not an accurate assessment of the student’s cognitive functioning, she thought that any inaccuracy “may be an underestimation, in certain sections, due to him being tired.” Tr. 51:6-11. Ms. XXXXX thought that the testing results, if an underestimation, would be seen on the nonverbal sections, “particularly the Matrix Reasoning subtest, where it doesn’t require constant verbal interaction.” Tr. 51. As for the testing results concerning the student’s emotional functioning, Ms. XXXXX described those as “accurate.” Tr. 51:23.

Ms. XXXXX explained that she used the WISC IV because “it’s valid and reliable and it’s widely used….both in and out of school.” Tr. 52:3-6. Ms. XXXXX stated that the test is used 95% of the time. Tr. 52:9-10. Ms. XXXXX also stated that it is widely used to assess the cognitive ability of grade students, and is recommended for students “ages 6 to 16.” Tr. 52:15-18. The student was 13 years and 5 months old when the test was administered. Tr. 53:2.

Ms. XXXXX explained that the report for the evaluation includes previous test results “[b]ecause for re-evaluations we like to see the differences between three years ago as opposed to current performance.” Tr. 53:8-10; Dist. Ex. 3. The previous evaluation was conducted by , the school for the District who works in the primary and elementary school. Tr. 53:11- 20.

Ms. XXXXX explained that the “WISC-IV is an intelligence test, so it measures ability, both verbal and nonverbal, as well as memory and processing speed.” Tr. 54:6- 8.

The subtests used to determine a student’s Verbal Comprehension Index or composite score are Word Knowledge, Vocabulary, Similarities, and Comprehension. Tr. 55-56. The student’s scaled score on the Similarities subtest was , in the range. Dist. Ex. 3-2; Tr. 56:11-14. The Similarities subtest measures abstract verbal reasoning.

The student’s scaled score on the Vocabulary subtest was in the range. Ms. XXXXX explained that the Vocabulary subtest measures word knowledge and should be an indication of a student’s reading ability. If you have good word knowledge you should have good reading ability. Tr. 58:11-14.

On the Comprehension subtest, the student’s scaled score was , in the range. Tr. 59. When asked how performance on this subtest relates to functioning in school, Ms. XXXXX answered: “Well, it measures social more social judgment, so social – I guess the way it relates in the school setting is with his peers, social interaction.” Tr. 59:22-25. With regard to verbal comprehension, the student performed in the range. Tr. 60.

The student’s Perceptual Reasoning Index, which was in the range, was measured by three subtests: Matrix Reasoning, Block Design and Picture Concepts. Block Design measures part/whole relationships, as well as how well you can replicate two-dimensional designs. Tr. 60. The student’s scaled score was a in the range. Id. Ms. XXXXX stated:

“I believe that because it was a timed task, that’s why he – timed out. He didn’t fail out of the items. He timed out. So if he had more time, if there was extra time given, he probably would have been able to do the task. But because I had to stop him, he didn’t finish it.” Tr. 61-62. Ms. XXXXX testified that if a student has a weakness in Block Design, “the only area that it may be affecting is geometry. However, in geometry we’re not using two-dimensional designs. So it may not affect it at all in that sense.” Tr. 91. Ms. XXXXX stated that if a student is good in block design, a teacher then could use manipulatives to help that student. Tr. 90-91.

“Picture Concepts measures verbal reasoning without the verbal. So it’s word reasoning, nonverbally.” Tr. 62:16-18. The student’s scaled score was , in the range. When asked how the Matrix Reasoning subtest relates to the student’s functioning at school, Ms. XXXXX stated: “It measures visual perception, so I guess things that are presented visually at school.” Tr. 62:13-14. Ms. XXXXX noted that it was during this subtest that she thought the student may not have been paying full attention, “due to him being tired. He was kind of slumped. That’s when I stopped him and said you want to continue, and he said he did.” Tr. 63-64. On cross-examination, when asked how a student with difficulty performing the Matrix Reasoning subtest would manifest itself in the classroom, Ms. XXXXX replied: “Basically it’s visual perception, so looking at graphs or charts – but in this specific subtest, you have to pattern and sequence. It may also be affected, but that’s what you’re doing....” Tr. 91-92.

Ms. XXXXX noted that the student’s overall performance results in 2010 were in the range. “The Matrix Reasoning subtest was the difference, and on any given day, a student can do better or worse.”

The student’s Working Memory was measured by two subtests, Digit Span and Letter Number Sequencing, and was found to be in the range. The student’s Digit Span score was in the range. Ms. XXXXX explained:

“…[I]t measures short-term auditory memory, information that’s presented within the first 30 seconds of hearing it, how well you can recall it. So I guess listening to what the teacher says and following, you know, short directions.”

Tr. 65:11-15. The student scored in the range on the Letter Number

Sequencing subtest. Tr. 65. It measures how well you can manipulate information within that first 30 seconds of hearing it. Tr. 66. The student’s performance on the Working Memory Index was comparable in 2010 and the current evaluation; he scored in the range on both tests. Tr. 66.

The student’s Processing Speed was measured by two subtests, Coding and Symbol Search. Tr. 66. The Coding subtest is a timed task that “measures speed and accuracy, as well as fine motor, attention, concentration.” Tr. 67:6-7. The student’s scaled score was in the range. Tr. 67. A student with difficulties on this test would demonstrate classroom difficulty with tasks requiring speed, accuracy, attention and concentration, “typically just writing.” Tr. 92-93:3-4.

The Symbol Search subtest measures similar skills as Coding as well as attention to details. Tr. 67. The student scored . Tr. 68. The student’s overall performance on processing speed was in the range. Tr. 68. The student’s 2010 scores also were in the range, but his score “went down by a couple of points” which Ms. XXXXX stated was not statistically significant. Tr. 68. Ms. XXXXX explained that the subtest assesses scanning and tracking so a student with difficulty on the Symbol Search subtest would have difficulty copying notes from the board. Tr. 92.

The student’s full scale score on the WISC IV was , falling in the percentile or range. Dist. Ex. 3-2; Tr. 68-69, 105. In 2010, the student’s full scale score,

, also was in the range and in the percentile. Dist. Ex. 4-4; Tr. 6, 105. Ms. XXXXX stated that since the scores both are in the range there is no statistical significance to the change of scores. Tr. 106:4-5. Ms. XXXXX stated that her style of report writing is that she reports the composite scores for the subtests, but not the percentile ranks because “they tend to confuse people.” Tr. 88:15-18; 90:2-3; 8-11.

Ms. XXXXX administered the BASC-2 “[b]ecause it’s a good self report measure, especially at this age, of a student – sometimes you get more information when they’re sitting there by themselves doing it than you verbally asking them, because they get a little uncomfortable.” Tr. 69:18-22. The data analysis of the student’s BASC-2 answers showed that “he was overall functioning appropriately for his age level, except there was one scale that was , self-reliance….I find that a lot of kids, at that age, would have that , because a lot of questions in that scale are asking others for help before you make a decision for yourself.” Tr. 70:16-23.

Ms. XXXXX administered the Conners Rating Scale to five of the student’s teachers. Tr. 71. Ms. XXXXX explained that “the Conners scale measures symptoms of ” Tr. 73:4-5. Ms. XXXXX scored the teacher’s responses. Id. The Conners Rating Scale “did not indicate that [the student] had any attention or concentration problems. There was one teacher that did report elevation in two areas, and that was a class that he’s having the most difficulty in.” Tr. 72:17-21. The science teacher reported elevated scores for inattention and executive functioning. Dist. Ex. 3-4; Tr. 73. Ms. XXXXX described the scores as in the range, but only slightly elevated. Tr. 108; 110:18. The elevated scores here did not cause Ms. XXXXX to recommend further exploration as to or because the score for inattention was not consistently elevated. “So, if it was typically an issue or cause of concern, more than one person would be indicating that.” Tr. 118-119.

Based on Ms. XXXXX ’s clinical interview of the student, she found the student “had age-appropriate interests and concerns. His thoughts were logical. His affect was appropriate, and he was functioning like a normal, average, grader.” Tr. 75:12- 15. Ms. XXXXX explained that she looks at the results of the clinical interview, the Incomplete Sentence Blank, and the BASC-2, for common themes. She found that the student was functioning well emotionally. “The only thing is that he said sometimes he reported that school makes him anxious, tests makes [sic] him anxious sometimes.” Tr. 76:9-12.

Ms. XXXXX did not think that there was any additional testing needed for her to assess the student’s cognitive or emotional functioning. Tr. 76-77. Nor was any additional testing needed to determine the student’s ability to function in the school environment.

XXXXX XXXXX is a high school special education teacher who has been employed by the District for five years. Tr. 127. She was an English teacher during her first year and a teaching assistant in special education the following year. Tr. 127-128. Ms. XXXXX has New York State certifications in English and special education for grades 5 through 12. Tr. 129.

Ms. XXXXX is familiar with the student only through the educational evaluation she administered to the student on January 29, 2013, the Wechsler Individual Achievement Test, Edition III (“WIAT-III”). Tr. 129, 130; Dist. Ex. 5. In the last three years, as a special education teacher, Ms. XXXXX l has performed 15 to 20 educational evaluations for the District. Tr. 130.

Ms. XXXXX used the WIAT-III because it is “a widely used test for students, pre-K through 12th grade.” Tr. 130:24-25. The WIAT-III tests students for their basic abilities at their grade level. Tr. 144. Ms. XXXXX has administered the WIAT-III to students 15 to 20 times. Tr. 131. The WIAT-III assesses reading, writing, and mathematics. Id. Ms. XXXXX administered “[m]ost” of the WIAT-III subtests to the student. Tr. 131:14. She explained that she did not administer the subtests that were not for his grade level “and the listening ones, because we normally do that for speech and language disabilities.” Tr. 131:16-18, 151-152. Ms. XXXXX was unable to answer what areas the listening subtest assesses. She stated that she never has given a listening subtest. Tr. 153.

Ms. XXXXX administered the WIAT-III to the student in the conference room. Tr. 151. Ms. XXXXX described the student’s demeanor during the administration of the WIAT III as “very respectful and cooperative. He was focused while he was taking the test. He put forth good effort. He worked diligently, and he was confident while taking the test.” Tr. 131:21-24. Ms. XXXXX had no reason to believe that the test results do not accurately reflect the student’s abilities. Tr. 131-132.

To assess a student’s reading abilities on the WIAT-III, Reading Comprehension, Word Reading Pseudo Decoding and Oral Reading Fluency subtests are administered. Tr. 132. For Word Reading, the student read from a list of words with increasing difficulty, achieved a standard score of , performing in the range. Tr. 132. On the Reading Comprehension subtest, the student read a series of paragraphs silently, and answered a series of questions read to him by Ms. XXXXX , from a booklet only she could see. Tr. 132-133, 152. The student attained a standard score of , performing in the range. Tr. 134. For the Pseudo Decoding subtest of the WIAT-III the student read from a series of nonsense words and had to pronounce the fake words as best he could. The student achieved a standard score of , performing in the range. Tr. 134. For the Oral Reading Fluency subtest, the student read aloud a series of passages and then was required to answer one comprehension question that was read to him by the test administrator. Tr. 134, 153. The student performed in the range with a standard score of Tr. 135.

The WIAT-III assesses a student’s math skills through a number of subtests. The Numerical Operations subtest requires the student to solve problems including integers, geometry, algebra and basic math skills. The student achieved a standard score of , performing in the range. Tr. 135. The Math Problem Solving subtest presented the student with a few problems that “had to do with more basic skills and money and real-life situations, graphs.” Tr. 136:5-10. The student achieved a standard score of , performing in the range. Tr. 136. The Math Fluency- Addition subtest was a timed 60 second test that required the student to solve one problem at a time for 60 seconds, until the time was up. Tr. 136. The student achieved a standard score of , in the range. Tr. 136. The Math Fluency subtest for subtraction is administered the same way. The student achieved a standard score of , in the range. Tr. 137. The Math Fluency subtest for multiplication is administered the same way. The student achieved a standard score of , in the range. Id.

The student took the Spelling subtest in which Ms. XXXXX gave the student a list of words, read them to him in the context of a sentence, and the student was required to write the word correctly “on the line.” Tr. 137-138. The student achieved a standard score of , in the range. Tr. 138.

The Sentence Combining subtest of the WIAT- III required the student to combine two or three sentences into one sentence to assess whether the student “can formulate a sentence with correct grammar, punctuation, sentence structure.” Tr. 138. The student received a standard score of , in the range. Id.

The Sentence Building subtest of the WIAT-III required the student to create a sentence from a given word. The student achieved a standard score of , in the range. Tr. 139.

The WIAT-III also includes an essay composition. The student must respond to a question presented and has ten minutes to answer the prompt. The essay is scored by assessing various components, grammar, mechanics, semantics and structure, which translate into three component scores. Tr. 139-140. On the grammar and mechanics portion of the Essay Composition subtest, the student achieved a standard score of , in the range. For theme development and organization, the student achieved a standard score of , in the range. The student’s overall essay composition standard score, which considers the essay details and the student’s elaboration, was , in the range. Tr. 140-141.

Ms. XXXXX testified that the student’s WIAT-III results informed her that the student’s abilities in reading, writing, math and spelling all were in the range. Tr. 141. Based on Ms. XXXXX ’s administration of the WIAT-III, Ms. XXXXX did not believe that there were any areas that needed additional probing or testing to determine the student’s present levels of academic ability because the student is in the range. Tr. 141-142. Ms. XXXXX attended the student’s March 1, 2013, CSE meeting where the WIAT-III test results were reviewed with the parent. Tr. 142. Based on the discussion that Ms. XXXXX heard at the CSE meeting, she did not believe any additional testing of the student was necessary because “he’s in the range for his grade level.” Id.

Mr. XXXXX XXXXX is a certified New York State and Connecticut pediatric therapist and “the contractor that does the therapy in the district.” Tr. 164:21-22, 165, 166, 190. Mr. XXXXX personally does all of the therapy supervision and all of the therapy evaluations in the District. Tr. 165; 166. Mr. XXXXX provides similar therapy services to six other educational institutions. Id.

Mr. XXXXX is familiar with the student through the evaluation he performed on April 14, 2011, and through the therapy providers “asking questions about all the different students….” Tr. 167:7-10; Dist. Ex. 6. XXXXXXXX was the student’s therapist at the time of the evaluation and Mr. XXXXX supervised her. Tr. 167. The student’s IEP goal at the time was for the student to improve his keyboarding skills. Tr. 193.

Mr. XXXXX used the Beery VMI Fifth edition Visual Motor Integration subtest and the Motor Coordination subtest, as well as the Motor Free Visual Perception Test to conduct the therapy evaluation. Tr. 168. In addition to performing these tests, Mr. XXXXX looked at how the student held his pencil and how the student oriented himself to the paper. Tr. 169. Mr. XXXXX explained that visual-motor coordination is an important concept for when a student is copying off of the board. Id.

Mr. XXXXX testified that the student did “very well” on the Beery VMI, with a raw score of and a standard score of or the percentile. Tr. 171-172. The Beery VMI Motor Coordination subtest is a timed test in which the student is asked to complete a maze-like task with pencil control. Tr. 172. On the Beery VMI Motor Coordination subtest the student’s raw score was and his standard score was , placing him in the percentile. Tr. 173. The Motor Free Visual Perception Test assesses “how the child perceives visual memory, visual closure, form constancy, visual sequencing.” Tr. 174:3-4. It is a “purely non-motor” test. Tr. 174:2. The student achieved a raw score of which translated to a standard score of and a percentile ranking of %. Mr. XXXXX added that 25-75 percentile is considered average. Tr. 182-183. Mr. XXXXX testified that as a result of the student’s performance on the administered tests, therapy no longer was recommended. Dist. Ex. 6; Tr. 175. The student’s goal was to work on keyboarding and he “had really excelled” at it. Tr. 192-193. Mr. XXXXX testified that he did not assess the student’s cutting skills because in the sixth grade, cutting is not “something that would impact his academics at that point.” Tr. 194-195.

On March 1, 2013, a CSE meeting was convened to review the evaluations performed by the District. Tr. 82. Both Ms. XXXXX and Ms. XXXXX were present and explained the results of their testing. Tr. 77. As a member of the CSE, Ms. XXXXX felt that she had sufficient information available at the meeting to assess the student’s cognitive functioning, emotional functioning and his ability to function in school. Tr. 78- 79. None of the information about the student that was reviewed at the CSE meeting indicated a need for any further assessments to accurately portray the student’s present levels of academic ability. No one at the meeting requested any further evaluation or assessment of the student in any area. Tr. 81, 142. The CSE continued the student’s current program for the remainder of the 2012-2013 school year and declassified the student for the 2013-2014 school year. According to Ms. XXXXX , “[b]ased on all the materials that were presented at the committee meeting, there was no – he was no longer eligible to meet the determination of a special education student.” Tr. 82:9-12.

On March 1, 2013, after the CSE meeting, the student’s mother requested an independent educational evaluation. Dist. Ex. 7; Tr. 82-83. Ms. XXXXX responded to the parent’s request and asked the parent to clarify what evaluations she was requesting. Tr. 84. The parent responded that she was seeking a evaluation and an evaluation. Ms. XXXXX does not believe that a l evaluation of the student is needed because “he’s functioning well within the ability, both academically and cognitively, and as well, he’s performing as expected in the school.” Tr. 85: 17-25. Based on the test data, as well as the teacher reports and the student’s report card grades, test grades, and his effort and participation in school, taking into account his strengths and weaknesses, and all the other factors that were presented, the student is performing , in school, at those levels. Tr. 115.

Ms. XXXXX did not believe that the student required an therapy evaluation at this time “[b]ecause there was one done two years ago and he had – he was well within the to range in the areas assessed.” Tr. 86:7-9. Additionally, therapy issues “have not been evident as a problem or a concern by our teachers here.” Tr. 86:10-12.

The District did not agree to perform the independent educational evaluation requested by the parent. Instead, the board of education authorized the commencement of an impartial hearing to challenge the parent’s request. Tr. 86. The Parent’s Case The parent testified that upon receiving the Evaluation report and the Educational Evaluation report, she immediately compared the 2013 results with those from the 2010 evaluations. Since the 2013 reports did not include percentile rankings in the same manner or to the extent provided by the 2010 reports, the parent had difficulty understanding how the student performed in relation to other students his age or in his grade and the parent requested clarification from the District. Tr. 198-199. Specifically, prior to the CSE meeting, the parent requested copies of the Individual Performance Summary Report from the WIAT-III and the subtest summary for the WISC-IV. Tr. 199. The parent did not receive some of those documents or others that sufficiently clarified her questions. As a result of the discussions which took place at the CSE, the parent remained unclear about the evaluation results, decided to seek out more information and based on her findings decided to challenge the CSE evaluations. Tr. 199-200. The parent did not see how the CSE could reach any determination without “…at least the percentile information that addresses specific educational needs.” Tr. 200:6-7. The percentiles were not listed separately on the new evaluations. Tr. 216. Since the March 1, 2013, CSE determination to declassify the student was based on the evaluations, the parent decided first to challenge the evaluations. Tr. 201.

The parent testified that she is not questioning the accuracy or validity of any of the standard scores reported for each of the subtests of the WISC-IV. Tr. 201-203; Dist. 3. With regard to the Processing Speed subtest reported on District Ex. 6, page 2, for the current testing results, the parent was not questioning the standard scores reported for Symbol Search and Coding. Tr. 203.

The parent stated that she questioned the results of the educational testing because of the extra help her son receives in the classroom and his IEP mandates, including the reading subtest standard scores. Tr. 204-205. The parent stated that the scores are higher than the student’s actual abilities. Tr. 205. The parent stated that she understood that some of the testing protocol required that the tester read the questions to the student. However, since the parent learned that the student’s teachers read test questions for him in math during the 2011-2012 school year and upon the student’s request in 2012-2013, and in all science tests for the 2012-2013 school year, the parent has concerns about the accuracy of the evaluation results. Tr. 210-211, 217. Additionally, the parent thought that the student received more than double time for math and science tests in the 2012-2013 school year. Tr. 210-213.

The parent thought that the student had difficulty understanding test questions when he had to read them for himself. Tr. 213-214. After the teachers stopped reading the test questions to the student, he failed two science tests, “very miserably”. Tr. 214:16-21. Previously the student’s science grade “was on the cusp”; his grade was in the mid s. Tr. 214:16-18. The parent also noticed that the student’s math quiz grades “were not very good”, but when the math tests were read to the student, “he would pass the test.” Tr. 223. Additionally, the parent had concerns about whether the student’s scores that fell in the range were in the range or the range, pointing to results falling in the percentile ranks of % and %, both which are considered . Tr. 206-207.

The parent requested a evaluation because it would provide a “more in-depth look into his higher-level functioning, but also it would specifically explain what—what the values of his scores mean.” Tr. 217-218. A evaluation would explain why he scored how he scored. Tr. 218. A previous evaluation tested areas addressed by the educational evaluation as well. The parent requested an therapy evaluation because the student reported to the parent that he had difficulty cutting with a pair of scissors. The parent observed a school project which required scissor skills and saw that the student had difficulty. The parent was not sure that the evaluation addressed the student’s ability to be able to cut. Tr. 219-221.

Findings of Fact and Decision Legal Framework

The central purposes of the IDEA are to ensure: (1) that students with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) that the rights of students with disabilities and their parents are protected. 20 U.S.C. §1400(d)(1)(A); Schaffer v. Weast, 546 U.S. 49, 51 (2005); Board of Education v. Rowley, 458 U.S. 176, 179-181 (1982). A free appropriate public education includes special education and related services designed to meet the student’s individual needs, provided in conformity with a written IEP. See 20 U.S.C. §1401(9); 20 U.S.C. §1414(d). A school district offers a student a free appropriate public education when (1) it complies with the procedural requirements of the IDEA and (2) its CSE develops an Individualized Education Program reasonably calculated to enable the student to receive educational benefits. Board of Education of Hendrick Hudson S.D. v. Rowley, 458 U.S. 176, 206- 207 (1982).

In order to effectuate the purposes of the IDEA, the statute places an affirmative obligation upon state and local educational agencies, such as school districts, to identify, locate and evaluate all children with disabilities residing in the state. 20 U.S.C §1412(a)(3)(A); 34 C.F.R. §300.111(a); 8 N.Y.C.R.R. 200.2(a); Handberry v. Thompson, 219 F. Supp. 2d 525, 540 (S.D.N.Y. 2002), aff’d, 436 F.3d 52 (2nd Cir. 2006). The Federal and State regulations relevant to this proceeding state that subject to certain limitations, if the parent disagrees with an evaluation obtained by the school district, the parent has a right to obtain an independent educational evaluation at public expense. 34 C.F.R. § 300.502[a],[b]; 8 N.Y.C.R.R. §200.5(g)(1). In addition, if a parent requests an independent educational evaluation at public expense, “the school district must, without unnecessary delay, either ensure that an independent education evaluation is provided at public expense” or initiate an impartial hearing “to show that its evaluation is appropriate, or that the evaluation obtained by the parent does not meet the school district criteria.” 8 N.Y.C.R.R. §200.5(g)(1)(iv); see, e.g., A.S. v. Norwalk Bd. of Educ., 183 F. Supp. 2d 534, 549 [D. Conn. 2002] [upholding order of reimbursement where the district failed to demonstrate that its evaluation was appropriate]; Application of the Bd. of Educ., Appeal No. 09-109; Application of a Student with a Disability, Appeal No. 08- 101); see also Pajaro Valley Unified School District v. XXXXX , 47 IDELR 12 (N.D. Cal. Dec. 15, 2006). If the hearing officer finds that a school district’s evaluation is appropriate or that the evaluation obtained by the parent did not meet school district criteria, a parent may not receive reimbursement for that evaluation. 8 N.Y.C.R.R. §200.5(g)(v).

At the outset, it is important to note that this proceeding relates only to the School District’s request that the parent’s request for independent educational evaluations be denied. As a result, this decision does not address, nor make any findings with respect to any eligibility determination made by the District, to any IEPs created for the student, to any special education programs offered to or provided for the student, or to the issue of whether the School District provided a free appropriate public education to the student for this or any other school year.

The School District contends that its evaluations of the student were appropriate. An evaluation includes “any procedures, tests or assessments used selectively with an individual student . . . as may be necessary to determine whether a student has a disability and the extent of his/her special education needs.” 8 N.Y.C.R.R. §200.1(aa).

The purpose of an individual evaluation is “to gather relevant functional, developmental and academic information about the student that may assist in determining . . . the content of the student’s [IEP], including information related to enabling the student to participate and progress in the general education curriculum.” 8 N.Y.C.R.R. §200.4(b)(1). A reevaluation of a student with a disability must “be sufficient to determine the student’s individual needs, educational progress and achievement, the student’s ability to participate in instructional programs in regular education and the student’s continuing eligibility for special education.” 8 N.Y.C.R.R. §200.4(b)(4). A reevaluation must also include data to determine the student’s present levels of academic achievement and related developmental needs, whether the student continues to need special education, and whether the student needs additions or modifications to special education services. 8 N.Y.C.R.R. §200.4(b)(5)(ii). Findings and Decision

The educational evaluations conducted by the District, do not meet the above criteria because they do not provide sufficient information to determine the student’s individual needs, educational progress and achievement, the student’s ability to participate in instructional programs in regular education and the student’s continuing eligibility for special education. Nor do they include the necessary data to determine the student’s present levels of academic achievement and related developmental needs, whether the student continues to need special education, and whether the student needs additions or modifications to special education services. 8 N.Y.C.R.R. §200.4(b)(5)(ii). Although the District witnesses, both who performed the evaluations and participated in the student’s CSE review, testified that the information that they had was sufficient and, in fact, based on the information, determined to declassify the student, the record demonstrates that the educational evaluation and the evaluation were not appropriate. However, the therapy evaluation was appropriate.

Prior to the March 1, 2013, CSE meeting, the parent had a meeting with District personnel where it was learned that during the 2012-2013 school year the science teacher was reading the student’s science test questions to him and the math teacher was reading test questions to him upon request. It also was learned that for the 2011- 2012 school year, the student’s math teacher had read test questions to him. Tr. 119,120. The student’s IEP did not require that the student’s test questions be read to him and it was determined that the student no longer would have questions read to him. Tr. 121-122. In science, the student had scored in the with test questions read to him. The student since has taken two science assessments during which he read the questions himself, and failed both “very miserably.” Tr. 214. The parent also noted that the student’s grades in math were not very good, but if the test questions were read, his performance improved. Tr. 223.

Neither the educational evaluation nor the evaluation address why the student performs poorly when reading the questions himself yet improves when the questions are read to him. The evaluations, however, raise questions that are not sufficiently addressed by them. Most notably, the reports did not evaluate the student’s progress toward the goals and objectives in his IEP. The Educational Evaluation report speculates that on the one test on which the student scored , the Oral Reading Fluency, the reason for the mistakes was “likely due to the student’s loss of focus and impulsivity.” and scores on the student’s Perceptual Reasoning Index are attributed to the student’s fatigue or an explanation that performance can vary on “any given day.” Tr. 51, 63-64. Yet the evaluators did not decide to test their assumptions by readministering those subtests on a different day. Additionally, while the student’s test results from the 2010 evaluation were similar to the results of the February 1, 2013, evaluation, i.e., verbal reasoning scores in the to range as compared to to scores on perceptual reasoning subtests and on processing speed subtests, the student’s standard scores decreased in both his verbal and nonverbal reasoning skills and the discrepancy between the verbal and nonverbal skills increased. There is no explanation as to the impact that could have on the student’s learning, if any, particularly as concepts increase in difficulty upon beginning high school.

The student’s Processing Speed Index score of was in the Range and percentile, again similar to the 2010 results, but lower. The 2010 report explained:

“Because learning often involves a combination of routine information processing (such as reading) and complex information processing (such as reasoning), a weakness in the speed of processing routine information may make the task of comprehending novel information more time consuming and difficult for [the student]. Thus, this weakness in simple visual scanning and tracking may leave him less time and mental energy for the complex task of understanding new material.” Dist. Ex. 4, pp. 5-6. The student may have a particular weakness with his speed of learning, not just how long it takes him to complete a timed test as suggested by the District when explaining the student’s lower scores on timed subtests. Tr. 61-62. Since the difficulty of the student’s academics has increased and a transition to high school will entail even more difficult academic requirements, the District’s evaluations do not sufficiently assess what the student’s learning abilities are and enable the District to determine what special education services, if any, the student needs. I find the District’s assertions that no further information was needed for the CSE to make determinations regarding the student because he received scores and performed within expectations (Tr. 85, 142) unpersuasive given the findings of facts identified above. The student’s poor academic performance in school, in science and math, and some District educators’ decisions to read the student test questions in order for him to pass those assessments could not be what had been expected of the student based on the evaluation results.

Whereas here, the parent did not contest the validity of the evaluation scores themselves, the parent’s right to request an IEE is not defeated. Questions have been raised with respect to whether sufficient testing was done to explain the scores obtained and the student’s school functioning. With respect to the results of the educational evaluation as they relate to the evaluation results and the student’s actual academic performance, the parent has raised legitimate concerns with respect to the appropriateness of the evaluations. The parent’s assertion that a previous evaluation included assessments in the same areas as the educational evaluation was unrebutted by any testimony or evidence to the contrary. A thorough and complete evaluation also will enable the parent to participate effectively on the CSE.

As for the parent’s request for an independent educational evaluation for therapy, nothing in the record supports a finding that the student’s difficulty cutting has an impact, currently, on his ability to learn in school or that the April 14, 2011, therapy evaluation is wanting. While it is understandable that the parent would want to address any fine motor issues that the student may be experiencing, at this time the District’s evaluation is deemed appropriate as it evaluated the student in the areas for which he was receiving services and reported on his progress. There is insufficient evidence in this record to warrant an independent therapy evaluation.

The independent education evaluation obtained by the parent must meet the same criteria as the evaluations obtained by the District. Specifically, the regulations enumerate, by way of example, "the location of the evaluation and the qualifications of the examiner" as applicable criteria that "must be the same as the criteria that the public agency uses when it initiates an evaluation." 34 C.F.R. § 300.502(e)(1). Moreover, these criteria must be met only "to the extent [they] are consistent with the parent's right to an independent educational evaluation." Id. Finally, the regulations specifically prohibit the "public agency [from] impos[ing] conditions or timelines related to obtaining an independent educational evaluation at public expense," other than the criteria described in the regulation, on a parent's independent evaluation. Id. at (e)(2).

ORDER

1. The parent is entitled to one independent educational evaluation at District expense. The XXXXX School District shall pay for an independent evaluation for the student. The evaluation must meet the District’s criteria for evaluations. 2. The parent’s request for an independent therapy evaluation is denied.

Lana S. Flame, Esq. Impartial Hearing Officer

Dated: June 11, 2013

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.

NAMES AND TITLES OF PERSONS WHO APPEARED on April 29, 2013

For the Student:

Ms. XX., Parent

For the School District:

XXXX, Esq. School District Attorney XXXXX XXXXX , School Psychologist, XXXXX School District Dr.XXX, Superintendent, XXXXX School District XXX, Assistant Superintendent of Instruction and Pupil Personnel Services, XXXXX SD XXXXX XXXXX l, Special Education Teacher, XXXXX School District XXXXX F. XXXXX , Therapist, XXXXX School District

DOCUMENTATION ENTERED INTO RECORD on April 29, 2013 District Exhibits District Ex. 1, Due Process Complaint Notice, March 26, 2013, 2 pp. District Ex. 2, Impartial Hearing Officer Appointment Letter, April 3, 2013, 3 pp. District Ex. 3, Re Evaluation, 1/31/13 and 2/01/13, 5pp. District Ex. 4, Evaluation, 2/01/10, 8 pp. District Ex. 5, Educational Evaluation, 1/29/13, 3 pp. District Ex. 6, l Therapy Evaluation, 4/14/11, 2 pp. District Ex. 7, Email from XXXXX to XXXXX XXXXX IEE Request, 3/01/13, 1 p. District Ex. 8, Email thread, XXXXX and XXXXX XXXXX , 3/04/13 and 3/05/13, 2 pp. District Ex. 9, Email thread, XXXXX and XXXXX XXXXX , 3/04/13 to 3/13/13, 1 p.

District Ex. 10, Email thread, XXXXX and XXXXX XXXXX , 3/19/13 Parent Exhibits Parent Ex. A, WIAT-II Individual Performance Summary Report, 1 p. Parent Ex. B, Emails between XXXXX and XXXXX XXXXX , 2/26/13 and 2/27/13, 3 pp. Parent Ex. C, WIAT-III Parent Report, 2/27/13, 1 p. Parent Ex. D, WIAT-III, Performance Graphs by Composite and by Student, Math Fluency

Description, undated, 3 pp. Parent Ex. E, WIAT-III, Clinician Report, 8/17/10, 7 pp. IHO Exhibits IHO Ex. I, Compliance Date Extension, April 26, 2013, 1 p.