Impartial Hearing Decision

Cover Sheet for electronic submission of impartial hearing decision

To: SPECEDIH@MAIL.NYSED.GOV

From: PAUL T. BUMBALO

Paul@bumbalolaw.net

IHRS Case number: District:

Attached is a redacted, electronic copy of the (choose one):

x Final Decision dated 7/24/2014

Pendency or

Amended final decision for the above case.

IMPARTIAL FORMAL HEARING PURSUANT TO

EDUCATIONAL LAW SECTION 4404(1) AND

COMMISSIONER OF EDUCATION REGULATION

SECTION 200.5 BEFORE PAUL T. BUMBALO, ESQ.,

IMPARTIAL HEARING OFFICER

_________________________________ In the Matter of the Complaint of DECISION Of the Parents of a Student Suspected of Having a Disability Against the XXXXXXXXXXXX

CASE ID NO

___________________________________

PROCEDURAL POSTURE

This impartial Hearing Officer was contacted by the District in regards to a Due Process Hearing Request that was filed on March 19th, 2014. This Impartial Hearing Officer was contacted by the District on April 4th, 2014 when this Impartial Hearing Officer indicated his availability to serve and this Hearing Officer was appointed on April 7th, 2014. The Due Process procedure was initiated by a Schedule Order and Notice of Start of the 45 Day Timeline which resulted in a pre-hearing conference in which the father indicated that an advocate would be assisting him. The advocate informed this Hearing Officer that they were attempting to retain legal representation for this District filed Due Process Hearing Request. This

Hearing Officer was subsequently advised that the father would be proceeding without the representation of an attorney, but with the assistance of the advocate The hearing dates were scheduled during the pre-hearing conference, position papers were exchanged and the 45 day rule was discussed. This Hearing Officer was informed that the advocate could not assist the father defending the District’s hearing request for medical reason. Next this IHO was informed that the advocate was able to continue her assistance to the Parent. The aforementioned matters resulted in an extension being granted on May 5th, 2014, June 4th, 2014 and June 16th, 2014. A hearing was held on June 16th, 2014 which was completed in one day with a post hearing submission by the District but none by the Parent herein. Said submission by the District indicated and raised the following questions; whether the student was entitled to an IEE at public expense as a 504 student, and whether the District’s evaluations were properly conducted or if the District has authority to set qualifications and the IEE evaluator did not meet the District’s qualifications. The auditory evaluation and an evaluation was no longer an issue. The District basically argues that as a 504 student, the student is not entitled to an independent educational evaluation at public expense. The District evaluation was thorough and the Parents did not specify their objection to the report. The IEE evaluator was not certified. The

Parents contend they had requested an IEE and the District failed to initiate a due process proceeding as required by regulation.

SUMMARY OF TESTIMONY

The District’s first witness is . She is a permanently certified special education teacher with a MS in Education and with a post certification in Building and District Administration

T50. She is director of the pupil personal services and is in charge of IEPs, 504 plans and guidance counselors T51. She reviewed the District’s exhibits which are all referenced as A; A1 is the letter from the Parent requesting the IEE dated May 11th, 2013. The District never ordered a evaluation. The witness’s response to the Parent indicating the Parents are not entitled to an IEE at public expenses is A2. A3 is the letter from the school psychologist.

A4 the father did not consent to the evaluation. A5 she notified the father that they would not provide an IEE at public expense since the student was classified under a 504 plan. A6 is the father consented to evaluation but revoked consent for services. A7 is the District’s . A8 was the request for information about the District educational programs and list of continuum of services to be provided by the District. A9 was the independent education evaluation the object was to obtain a multi-disciplinary evaluation. The letter from the Parent was objecting to the evaluation but did not specify what their objections were to the school evaluation which was performed by a licensed certified school psychologist. Dr. D is a special education teacher not certified as a school psychologist. Upon review of the web-shot, Dr. D. had more than one certification but two had expired. The student had a 504 plan but there was a request for an evaluation and the evaluations which were completed D22 is a 504 plan. The IEE is A-14 based upon a contact date of 11/18/13 dated 11/26/13. The invoice for the IEE A14 is A 16 dated

12/9/13 which was received by the District on 12/20/13

On cross examination it was revealed that the list of approved independent education evaluators was requested by and was provided to the father by being hand delivered to the father with a note to the attention of Per the direction of the father the witness was to contact the family educational advocate and the response was that District policy was to write the Parents. The witness had spoken with the father who indicated that he should speak with the advocate T85. The witness did not feel comfortable contacting the advocate since the mother is available and in the picture. Furthermore a substantial period of time elapsed between the request for the IEE. She responded with a Due Process Hearing Request.

The District’s next witness was the school psychologist who has a BS and MS in school psychology T108 with 2 years of class instruction and a 3rd year with paid internships and practice sessions of evaluations T109. He is NYS certified as a permanent certified school psychologist T109. He has been with the District for 8 years in K-12. His primary job responsibilities include assessment and consultation, and some counseling T110. His experience is very heavy in the assessment component which is academic, cognitive evaluations T110. They knowingly prepare a rating schedule of behaviors. The evaluation is broad based. He performs approximately 40-50 a year T113. The evaluation process involves record review, classroom observation, paperwork, writing scales, direct testing, social history, quantitative rankings. The student was interviewed to obtain a rapport prior to the testing T116.

With the BASC2 the student scored in anxiety at risk by all raters; the self-reliance and stress management was She was solidly with a WJIII score of The student was in the percentile in verbal skills: thinking ability score average in the percentile, long term retrieval of percentile and fluid reasoning of percentile. 3 writing, 3 reading, 1 math subtest, 7 tests were average. She was at risk for reading comprehension and anxiety T117.

There were a variety of fears and worries, test taking and, peer issues among various things

T118. In cognitive testing the student was within the average range on all 7 subtests. Spelling was within the score and the student was The WIAT academic testing supported that the student was average except math was a relative weakness T125. The witness’s concern was based on the student self-reporting on pages 5 and 6 regarding the anxiety levels but the student’s behaviors T129 were appropriate mood and outside variables were a factor including test anxiety but she was very easily reassured T130. The witness had administrated the BASC 2 on a writing scale. The student’s T scores were in the average range a 60 would be at risk indicating a standard deviation of 10, 20 points off would be clinically significant. They reported her anxiety and self-reliant being low and her self-confidence as indicated by the student’s scores for anxiety and somatization ratio, scores show she is at 6% at risk, because it explains this with the student’s history of T133. The anxiety was at T score and the percentile all 4 raters scored her a T scores. She was a very anxious child, her behaviors are age appropriate, but she was at risk for depression T136, some functional communication and leadership. But the findings were not supportive of learning disability with scores of with lower than 60 by average or low risk. She did receive support school based as well as outside g and wanted to include that in the 504 recommendations T139. He discussed but the father was not in favor of

T141. The witness indicated that Dr. D.’s evaluation was very similar but he was shocked in that Dr. D. had found the student to be but with only 1 subtest in writing T143 being at a low level. They used different tests but results were similar T144. . He felt the data was inconsistent and Dr. D. did not contradict his data but the interpretation did because the 9 percentile in written expression and ignored the broader set of data including the assessments in ELA the student was doing well T145.

On cross examination of reviewed A7 the student’s levels seemed to be age appropriate. If he had any questions he referred to the e pathologist T151. The student was several categories in long term retrieval fluency percentile, auditory and to think about process information. The witness believed that the student had reading deficits and writing.

She would not have scored as well as she did in the State ELA testing, scoring a percentile.

The witness opined with the appropriate support she would do well in a classroom setting T165.

The testified she provided services to the student for a 6 week period of time and reviewed the predecessor’s evaluation and prior recommendations T176 with scores slightly T180.

The District rested and the next witness on behalf the Parent’s was the father. He indicated that the student had ongoing problems since the 4th grade and the student progressed and was provided more and more accommodations and modifications. No services were provided other than s The father felt the District developed a response to his request for an IEE T196. He never looked at test evaluations T200.

DECISION

The District argues that the student is classified pursuant to Section 504 of the Rehabilitation Act of 1973 and the District is not required to provide independent educational evaluation at public expense. In review of 2010 Guidelines for Educators and Administrators for

Implementing Section 504 of the Rehabilitation Act of 1973 - Subpart D dated 2010 reveals in appendix C a comparison of chart IDEA, 504 and ADA in particular provision Page 78 which indicates there is no provision pursuant Section 504 for independent education at District expense.

However that does not dispose of the matter and the analysis requires a review of the New York State Rules and Regulations in particular part 200.5(g) which deals with independent educational evaluations and it should be noted that said section of the regulation deals with due process procedures.

200.5(g) states

“Independent educational evaluations. (1) Requests by Parents. 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. A Parent is entitled to only one independent educational evaluation at public expense each time the school District conducts an evaluation with which the Parent disagrees.”

The said section does not specifically limit said independent educational evaluations for those

Parents of students that have been identified or classified as being students with a disability. A plain reading of the regulation indicates that the language refers to Parent. An analysis would indicate that if Parent is disputing an educational evaluation by a District at the initial CSE meeting or classification CSE meeting to determine the eligibility of the student suspected of having a disability then Parents would be precluded from having an independent educational evaluation. There is no specific language in the regulation requiring such a finding. After further review of SRO decision 11-122 reveals that said issue was dealt with before.

The SRO stated the following:

“…federal and State regulations provide that, subject to certain limitations, a Parent has the right to an IEE at public expense if the Parent disagrees with an evaluation obtained by the school District (34 C.F.R. § 300.502[a], [b]; 8 NYCRR

200.5[g] [1]; see R.L. v. Plainville Bd. of Educ., 363 F. Supp. 2d. 222, 234-35 [D. Conn.

2005] [finding Parental failure to disagree with an evaluation obtained by a public agency defeated a Parent's claim for an IEE at public expense]). A Parent, however, is only entitled to one IEE at public expense "each time the public agency conducts an evaluation with which the Parent disagrees" (34 C.F.R. § 300.502[b] [5]; 8 NYCRR 200.5[g] [1]; see R.L., 363 F. Supp. 2d at 234-35). If a Parent requests an IEE at public expense, the school District must, without unnecessary delay, ensure that either an IEE 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 (34 C.F.R. § 300.502[b][2][i]-[ii];12 8 NYCRR 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). If a school District's evaluation is appropriate, a Parent may not obtain an IEE at public expense (34 C.F.R. § 300.502[b]

[3]; 8 NYCRR 200.5[g] [1] [v]; DeMerchant v. Springfield Sch. Dist., 2007 WL

2572357, at *6 [D. Vt. Sept. 4, 2007]; Application of a Student with a Disability, Appeal No. 08-039; Application of a Child with a Disability, Appeal No. 07-

126; Application of a Child with a Disability, Appeal No. 06-067; Application of the Bd.

Of Educ., Appeal No. 05-009; Application of a Child with a Disability, Appeal No. 04-

082; Application of a Child with a Disability, Appeal No. 04-027).”

The student in 11-122 was not a student classified with a disability pursuant to NYS law or the IDEA. Nonetheless the SRO found that the District was required to provide reimbursement to the Parents who requested an independent educational evaluation at public expense.

This however also is not dispositive of the issue in light of the fact that the District has taken the position that the Parents’ selection of the independent educational evaluator was not a certified school psychologist or off the District approved list of independent educational evaluators. The District contends that the evaluator was only certified as a NYS special education teacher and had 2 certifications lapse and did not meet the requirements of the District for independent educational evaluation for which the District is entitled to establish certain criteria. The Parents contend that the District failed to file a due process hearing request in a timely fashion and proceed with unreasonable and unnecessary delays in an attempt to preclude the Parents from pursuing a full and through independent educational evaluation of their student.

In SRO 11-122 FN 12

“12 The Analysis of Comments accompanying the federal regulations implementing the provisions for an IEE state that "[a]lthough it is appropriate for a public agency to establish reasonable cost containment criteria applicable to personnel used by the agency, as well as to personnel used by Parents, a public agency would need to provide a Parent the opportunity to demonstrate that unique circumstances justify selection of an evaluator whose fees fall outside the agency's cost containment criteria" (Independent Educational Evaluation, 71 Fed. Reg. 46689-90 [Aug.

14, 2006]).”

If should be noted that the initial request for independent educational evaluation A1 is dated May 11th, 2013, the District did reject said request with an explanation thereof on May

17th, 2013. It should be noted that the student’s educational evaluation provided by the District was based upon the evaluations of September 19th, 2013 and September 26th, 2013. The Parents requested an independent educational evaluation on October 29th, 2013. Documented by A9 the District denied said request by means of a letter dated November 6th, 2013 and requested an explanation and said explanation was provided on November 12th, 2013 the date of contact for the independent educational evaluation was November 18th, 2013 and the bill was dated December 9th, 2013.

The Commissioners Regulations state further that

“(i) If requested by the Parent, the school District shall provide to Parents, information about where an independent educational evaluation may be obtained, and the school

District’s criteria applicable for independent educational evaluations, as described in subparagraph (ii) of this section.

(ii) The criteria under which the evaluation is obtained, including the location of the evaluation and the qualifications of the examiner, shall be the same as the criteria which the school District uses when it initiates an evaluation, to the extent those criteria are consistent with the Parent’s right to an independent educational evaluation. “

A9 is the Parent letter dated 10/29/13 identifies Dr. D by name. The District’s PPS director SS by means of A10 a letter dated 11/6/13 informs the Parents that the IEE must have the same qualifications as the public agency evaluator referencing the regulations. A12 a letter form SS dated 11/20/13 informs the Parents of the required qualifications of the educational evaluator. It needs to be performed by a certified licensed school psychologist. The Dr. D’s report indicated that the first contact was on 11/18/13 with the evaluation report dated 11/26/13.

The District interprets criteria and qualifications as the same as certifications and licenses.

In SRO 11-074

“One component of Parental participation rights is the right to obtain an IEE (see 20 U.S.C. § 1415[b][1]; 34 C.F.R. § 300.502; 8 NYCRR 200.5[g]). Federal regulations define an IEE as "an evaluation conducted by a qualified examiner who is not employed by the public agency responsible for the education of the child in question" (34 C.F.R. §

300.502[a][3][i]; see 8 NYCRR 200.1[z]). An evaluation is defined in federal regulations as the "procedures used in accordance with [34 C.F.R.] §§ 300.304 through 300.311 to determine whether a child has a disability and the nature and extent of the special education and related services that the child needs" (34 C.F.R. § 300.15). An evaluator is required to review existing evaluative data and identify what further data is necessary to determine the student's educational and developmental needs for special education and related services (34 C.F.R. § 300.305[a]). If further data is necessary, the evaluator is required to gather relevant information about the student to make such a determination of the student's needs (34 C.F.R. § 300.304[b][1]; see Educ. Law § 4402[3][a]). In gathering such information, the evaluator is required to use multiple assessments to determine the scope of the student's needs and assess the student in all areas of disability in a sufficiently comprehensive manner "to identify all of the student's special education and related services needs" (34 C.F.R. § 300.304[b][2]; [c][4], [6]; see 34 C.F.R. §

300.306[c][1] In addition to the generalized right to an IEE, under certain circumstances

Parents may have the right to have the IEE conducted at public expense (34 C.F.R §

300.502[b]). If the IEE is to be at public expense, the IEE must be obtained under the same criteria—including location of the evaluation and evaluator qualifications—as those used by the District when it evaluates a student (34 C.F.R. § 300.502[e][1]).

Furthermore, when a Parent obtains an IEE at private expense, the District must consider the results of the evaluation in making decisions with respect to the student's educational placement only if the evaluation meets District criteria for an evaluation (34 C.F.R. §

300.502[c]; 8 NYCRR 200.5[g][1][vi][a]). “

It would appear that the section of Dr. D does not meet the criteria of the District.

The next question is whether the criteria would include the manner and method of informing the Parents of the criteria as NYS Regulations stated,” …to the extent those criteria are consistent with the Parent’s right to an independent educational evaluation.

The requirement that the IEE be performed by a certified licensed school psychologist is unduly restrictive. This would unfairly limit the list of evaluators to those who are currently employed by a school District or are retired as such. The list of approved evaluators was not included in the record so it is unclear the quantity of approved IEE providers. The requirement that the IEE can only be performed by an individual on the District list implies that the evaluator may not truly be independent.

The District by focusing on certifications and, licenses minimizes the educational requirements of Dr. D In obtaining HIS PhD in Education and implies that DG is more qualified than Dr. D.

A review of the IEE of Dr. D reveals it to be a thorough comprehensive evaluation reviewing test results administered by the District staff In addition and notwithstanding the difference between in qualifications and certifications of the parties evaluators nonetheless DG the school psychologist indicated that on 2 occasions during his testimony that the test performed by Dr. D and his testing were very similar. This agreement between the evaluators was in terms of the interpretation of said testing and that DG disagreeing was shocked at the findings an interpretations of Dr. D. And as a result of the aforementioned I find that the evaluations were similar in nature with differing interpretations of the data collected. However that does not disqualify Dr. D. or his opinion simply based upon the fact that his diverging from DG’s interpretations, findings and results.

It is clear based on the aforementioned timeline that the District had the opportunity to file a due process hearing request challenging the Parental right to an IEE based upon the student being qualified student under Section504, since that request was made on May 11, 2013. If this issue would have been dealt with initially then it would have been easier to focus on the selection of an evaluator.

FINDINGS

As a result of the aforementioned, I find that the District is obligated to reimburse the Parent for the cost of the IEE at Public expenses.

ORDER

The District is hereby ordered to reimburse the Parents for the cost of the independent educational evaluation in the amount of .00within 30 days of the date of this decision.

PLEASE TAKE NOTICE: Any party aggrieved by the findings of fact and the decisions of an impartial hearing officer rendered in accordance with subdivision (I) of section 200.5 may be obtained by either the Parent or the board of education by an appeal to a State review officer of the State Education Department. Such a review shall be initiated and conducted in accordance with provisions of parts 279 of this title. Section 279.2 states:

“ 279. (2)(b).13 Notice of intention to seek review.

(a) The Parent or person in Parental relationship of a student with a disability who intends to seek review by a State Review Officer of the State Education Department of the decision of an impartial hearing officer shall serve upon the school District, in the manner prescribed for the service of a petition pursuant to section 275.8(a) of this Title, a notice of intention to seek review in the following form:

Notice:

(a) The undersigned intends to seek review of the determination of the impartial hearing officer concerning the identification, evaluation, program or placement of

(name of student with a disability). Upon receipt of this notice, you are required to have prepared a written transcript of the proceedings before the impartial hearing officer in this matter. A copy of the decision of the impartial hearing officer, a bound copy of the written transcript, including a word index for the written transcript, as well as an electronic transcript, and the original Exhibits accepted into evidence at the hearing and an index to the exhibits must be filed by the Board of Education with the Office of State Review of the New York State Education Department within 10 days after service of this notice.

(b) 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.

( c ) A notice of intention to seek review shall not be required when the board of education initiates an appeal from an impartial hearing officer's decision. A copy of the board's notice of petition, petition, memorandum of law and any additional documentary evidence shall be served upon the Parent within 35 days from the date of the impartial hearing officer's decision. If the decision has been served by mail upon the board, the date of mailing and the four days subsequent thereto shall be excluded in computing the 35 day period

Dated: July 24, 2014