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FINDINGS OF FACT AND ORDER
Case Number:
NYS Case Identifier Number: N/A
Student’s Name:
Date of Birth:
District:
Hearing Requested by: Parent
Date of Hearing: 11/4/14
11/20/14
Record Close: 1/9/15
Hearing Officer: . , Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED NOVEMBER 4, 2014
Attorney — Student
DOE Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED NOVEMBER 20, 2014
Attorney — Student
Ph.D., Principal — Student
Mother — Student
Interpreter — Student
DOE Representative — DOE
This case was brought before me pursuant to appointment by the New York City Department of Education (DOE) under the Individual with Disabilities Education Act (IDEA), 20 United States Code §1415(f)(1).
( ) is a -old student whose parent ( , or )
has brought a hearing challenging the DOE for failure to provide a free appropriate public education (FAPE). Ex. A. At the request of the parent, a pendency hearing was convened on November 4, 2014, and a pendency order was subsequently issues. The hearing reconvened on November 20, 2104. Post-hearing submissions received on January 9, 2015, are appended to this decision as exhibits.
DISTRICT CASE
The district representative conceded that the DOE had not provided a FAPE for for the 2013-2014 and 2014-2015 school years. She also stated that the district took “no position” as to whether the child’s placement was appropriate. Tr. 29, 31, 100; Ex. III.
The district representative stated the DOE opposed the parent’s requests for evaluations (other than agreeing to conduct a evaluation) and for translation of documents to the parents’ language. Tr. 32, 41-43. The district also opposed the parent’s request that a be included on the child’s IEP, stating that the current IEP contained all necessary language concerning the child’s status. Tr. 71-77.
PARENT CASE
Dr. , testified that she is Principal of
. The school, which is approved by the state for special education, offers grades in classrooms. The teachers are certified in special education. The population of children with disabilities includes children with a range of classifications,
.
She testified that , who of the in the prior year, was currently attending . has . Dr. stated that an appropriate class for her was the class, which services . The mandated IEP ratio of adults is maintained throughout the . The school also
. Tr. 45-56.
, ’s parent, testified that did not attend school in September or October 2014, only beginning school November 16, 2014, as the DOE did not provide an appropriate school for her. The DOE did not provide her with any related services during that period.
testified that a on ’s current IEP and that on her IEP. She conceded that Dr. reported
had been
Exs. D, N.
Asked about her request for an independent evaluation, she testified that her daughter needed one because she She asked for an evaluation at the IEP meeting in March 7, 2014. A evaluation was conducted on June 19, 2014 at . Ex. M. stated that she was convinced that had done a very good evaluation. She explained that she was asking for another evaluation to be conducted, to evaluate her daughter for . There has not been another IEP meeting since that evaluation was conducted. By letter dated August 27, 2014, she provided several evaluations1 conducted at and requested a “reconvene” of the IEP team. Ex. S. She received no response to her request to reconvene a meeting after providing the evaluations. She explained that she asked for the additional independent evaluation “because she wanted the DOE “to understand … and be convinced that [ ] has
.” She has also received no response from the DOE to her written request for an evaluation contained in the due process complaint notice filed of September 9, 2014. Tr.
58-93; Ex. A.
FINDINGS
The decision in this case requires analysis of the following issues: the appropriateness of the child’s placement at ; request for additional services, e.g. ; the failure of the DOE to provide
1 Evaluations sent to the DOE with the parent’s August 27, 2014 letter included a (dated 5/1/14), evaluation (6/9/14), evaluation (7/31/14), evaluation (6/19/14), and team conference summary form (8/11/14). Exs. K, L, M, N, O, S. education and related services for a two-month period at the start of the 20-14-2015 school year; the parent’s request for DOE evaluations and an independent evaluation at public expense; the request for a to be place on the child’s IEP; and the request for translations of special education documents.
Appropriateness of the child’s placement at
As noted above, the district representative not only conceded the DOE had failed to provide the child with a FAPE for two years, but took the position that the district had “no position” on the appropriateness of the child’s placement to .
Nor did the district enter any documents into evidence. Thus, I must rely on the documentary evidence and testimony of parent witnesses. There was no dispute that the school is approved by the state for delivery of special education services. has been attending the school since November 17, 2014, and according to the school principal, the school has been providing her with appropriate classroom instruction and related services as indicate don the child’s IEP. The district representative did not ask a single question of the school principal. I find the evidence to be credible and persuasive that the child’s placement is appropriate.
Request for additional services
The parent withdrew claims concerning separate requests for related services at the child’s school and transportation. Tr. 35-36.
I note for the record that a separate request for and was expressly not withdrawn by the parent. Tr. 97-98. Nevertheless, testimony of Dr.
indicated parent training and counseling was provided by the school’s social worker, making the request addressed within the decision above finding the child’s placement at to be appropriate. Thus, the claim will be denied.
Failure to provide education and related services
Given the DOE’s admission that the child had been denied FAPE and its failure to provide any evidence to rebut or explain the child’s total exclusion from education for 10 weeks months in the start of the 2014-2015 school year, I find that she is entitled to some level of compensatory services for those weeks. I reject the district’s argument that relief is not appropriate as compensatory services were not specifically included in the due process complaint notice, and note that the notice did ask for such other additional relief as I deemed necessary to ensure a FAPE for the child for the years in question. Ex. A. Ten weeks is a long time in the education of a child with disabilities such as ’s, and the district had no explanation to offer as to why it was not providing pendency services immediately upon receipt of the hearing request, as required by IDEA. Under the circumstances, the district’s objection to an award is without merit.
The parent has suggested the 10 weeks in 2014 where she had no school placement at all.
I have considered the portion of the child’s IEP requiring weekly, and minutes, and find that is entitled to hours of as compensatory services to be provided by the DOE.
Evaluations
Discussion of evaluations requires examination of the parent’s due process claim, which demanded (1) the DOE conduct evaluations of in the areas of , evaluation conducted at public expense.
In regard to the demand for the DOE to conduct evaluations, the district representative agreed that the DOE would conduct a evaluation, which should include consideration of the child’s ( ), as needed.
Tr. 103-105. I concur with the district’s argument that evidence did not show an
) to be warranted in this case. The evaluation of in evidence was conducted in February 2014, and there was no evidence proffered that the evaluation was in any way inadequate. An is required of students who that interfere with learning; there was no evidence proffered that it was needed for In regard to the demand for an independent evaluation of the child’s , the district representative’s argument at hearing was that the DOE “can and routinely conducts evaluations.” Tr. 32. She conceded that the DOE did not request a hearing concerning the request for an independent evaluation. Tr. 33-34. In the post-hearing brief, the district argued that s student didn’t needs reevaluation more than once a year, and that the parent never requested an evaluation in writing to the CSE. IHO Ex. III.
In fact, the parent testimony, undisputed by the district, established that she did in fact ask for evaluation at the March 7, 2014 IEP meeting. That the district claims the parent, with , should be required to reduce her request to writing for the district to honor it is a position without foundation in law, and a specious position for an educational institution.
More importantly, the district’s argument ignores its failure to follow established procedures required for it to challenge a request for an independent evaluation. Regulations of the Commissioner of Education are clear in regard to the process to be followed;
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 evaluation at public expense.
.. (iii.) .. (a) The explanation by the parent in subparagraph (iii) of this paragraph may not be required and the school district may not unreasonably delay either providing the independent educational evaluation at public expense or initiating a due process hearing to defend the public evaluation.
.. (iv) If a parent requests an independent educational evaluation at public expense, the school district must, without unnecessary delay, either ensure an independent educational 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 NYCRR § 200.5(g).
Under the regulation, if the district does not want authorize the requested evaluation, it is required to either ensure the evaluation is provided or bring a hearing to defend its own evaluation. In this case, it did neither, complaining that it “could have discussed the issue” at a resolution session. This is hardly an objection to take seriously.
I will be denying the parent request, however, upon consideration of the parent’s testimony conceding that she had an evaluation from and explaining her reason that she wanted the DOE to do an evaluation so the DOE would understand the gravity of her child’s issues. Given the district’s failure to conduct an evaluation when she originally requested it in March 2014, and its wholesale failure to review the evaluations she provided in the summer of 2014, the parent’s frustration and desire that the district acknowledge and review the extent of her child’s difficulties are quite understandable. I will be ordering the CSE to convene immediately to consider and review the and other evaluations the parent has provided.
– wants physical exam of child
Although asserting her child’s continued , the parent acknowledged the report that has been since August 2013. Under the circumstances, it was clear that clarification was needed about the child’s status and the specifics of . I agree that the CSE should consider the report of a current examination, and if it specifies a ,a to that effect should be entered on the IEP. Tr. 38; Exs. D, N.
Translation of IEP and other documents
The request was for translations of both the “new IEP” and all other evaluations and other documents on which a reconvened CSE would rely. Tr. 38; Ex. A.
I note that the district representative objected at the hearing, stating that the DOE practice is to have a fluent speaker present who is “fluently translating, explaining whatever is written in English on the IEP itself.” Tr. 41-43. In post-hearing brief the DOE stated that bilingual personnel are provided to “sit with, read, and verbally explain each line of each document, including the IEP.” Ex. III.
There was no evidence offered by the DOE that this actually was common practice, or that there had been any translation provided ’s parent at any time. The DOE agreed to stipulate that the parent’s native language was and her English was limited. Tr. 63.
In fact, the DOE’s SOPM requires the DOE to “translate all IEPs and evaluation reports,” upon parental request, and that parents “have the right to be provided with the student’s IEP, assessments and evaluations and due process notices in their preferred language or mode of communication.” The manual goes on to state, “Additionally, parents should be provided with all assessments and evaluations before the IEP Team meeting.” S tandard Operating Procedures
M anual: R eferral, Ev aluation, and Placem ent of S chool-A ge Students with Disabilities, February
2009. While the SOPM may not be binding, the requirements contained in the SOPM find support in a Chancellor’s Regulation, which is binding. The Regulation’s “Translation
Requirements” require the DOE to provide parents with a “translation of any document that contains individual, student-specific information regarding, but not limited to, a student’s: a.
health; b. safety; c. legal or disciplinary matters; and d. entitlement to public education or placement in any Special Education, English Language Learner or non-standard academic program.” The Regulation applies to “covered languages,” the nine most common primary languages in the city, Spanish being the most common among languages of non-English speaking parents of students attending public schools. To be clear, as there seems to some ambiguity in use of the word “translation,” the Regulation defines “translation” as “the written communication between a speaker of English and a speaker of a covered language wherein the written words of one person are communicated to others in writing in a different language.” Chancellor’s Regulation A-663, June 26, 2009.
The DOE also cited a letter from the federal Office of Special Education Programs, which states that “There is no requirement in IDEA or accompanying regulations that all IEP documents must be translated.” By its own terms, the letter is provided as “informal guidance” only, and is not legally binding. Letter to Boswell, 49 IDELR 196 (OSEP, Sept. 4, 2007). A State Review Officer decision on the subject cites the letter as authority, also noting the absence of IDEA or federal regulation requiring translation. A pplication of XXXXX, SRO Appeal No. 14-025.
There is, however, no prohibition on translation of IEPs or evaluations. The district’s policy, as articulated in Regulation and SOPM, make clear the requirement that translation is required upon parental request.
ORDER
1. The DOE shall continue ’s placement in the program at the , including related services of included on the child’s IEP.
2. The parent’s request for is denied. Findings of Fact and Order [10]
3. The DOE shall provide compensatory services for , either directly or through related service authorizations (RSAs), for a total of hours of special education instruction, hours of , and hours of . The district shall issues authorizations as may be needed, which shall be effective through the 2014-2015 and 2015-2016 school year.
4. The DOE shall conduct a evaluation of , which shall include consideration of the child’s need for appropriate ( ), including recommendations as may be needed.
5. The CSE shall review the report of a examination of , to be submitted by the parent, and enter a on the IEP concerning contained in the report.
6. The parent’s requests for an evaluation and for a are denied.
7. The parent’s request for an independent evaluation is denied.
8. The CSE shall convene immediately to review the evaluations provided by the parent, including but not limited to (dated 5/1/14), evaluation (6/9/14), evaluation (7/31/14), evaluation (6/19/14), and team conference summary form
(8/11/14), and make appropriate recommendations based on their review.
9. The CSE shall not delay convening the review ordered under Paragraph 8 of this Order to wait for the evaluation results or the mandated by Paragraphs 4 and 5 of this Order. The IEP team shall reconvene to review those documents upon their submission. shall provide a written copy of the IEP or IEPs developed at those meetings translated into .
IT IS SO ORDERED.
Dated: January 21, 2015
Impartial Hearing Officer
PLEASE TAKE NOTICE
Within 35 days of the date of this decision, the parent and/or the Board 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.
If the parent plans to appeal the decision, 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 so that a certified copy of the hearing record may be prepared for submission by the school district. Failure to file the notice of intention to seek review is a waiver of the right to appeal the decision.
If the school district plans to appeal the decision, the district shall file a certified copy of the hearing record together with its petition.
The petition for review shall be 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 State Review Officer are found in Part 279 of the Regulations of the Commissioner of Education available at http://www.sro.nysed.gov/part279home.html.
DEPARTMENT OF EDUCATION EXHIBITS
None
PARENT EXHIBITS
A Impartial Hearing Request, 9/9/14, 9 pages
B Motion for Pendency, undated, 3 pages
C IEP, 3/27/13, 16 pages
D IEP, 3/7/14, 15 pages
E IEP, 3/31/14, 19 pages
F education evaluation, 8/17/12, 5 pages
G evaluation, 8/23/12, 4 pages
H Social history update, 1/17/14, 2 pages
I evaluation, 2/28/14, 6 pages
J note, 3/20/14, 1 page
K Document, 5/1/14, 7 pages
L report, 6/9/14, 3 pages
M evaluation, 6/19/14, 7 pages
N evaluation, 7/31/14, 3 pages
O Team conference summary form, 8/11/14, 1 page
P progress report, 12/9/13, 5 pages
Q progress report, 12/11/13, 4 pages
R Quarterly progress report, 2/25/14, 4 pages
S Letter, Parent, 8/27/14, 2 pages
IHO EXHIBITS
I Prehearing conference summary, 10/10/14, 1 page
II Extension decisions, IHO, 11/20/14 – 12/22/14, 2 pages
III Letter brief, DOE, 1/5/15, 8 pages
IV Parent’s Closing Memorandum, 1/7/15, 7 pages
Footnotes
[10] Prior to any CSE or IEP meetings convened pursuant to this Order, the DOE shall provide to the parent copies of any evaluations to be considered and written of such evaluations. Written translation required by this Paragraph does not apply to evaluations obtained by the parent. Upon request by the parent, the DOE