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FINDINGS OF FACT AND DECISION
Case Number:
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: March 9, 2015
March 12. 2015
Actual Record Closed Date: April 16, 2015
Hearing Officer: , Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 9, 2015
Department of Education Department of
(via telephone) Of Education Representative Education
Esq. Attorney — Parents
Legal Intern — Parents
(via telephone)
- Legal Intern — Parents
(via telephone)
Legal Intern — Parents
(via telephone)
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 12, 2015
Department of Education Department of Of Education Representative Education Department of Education Department of Of Education Representative Education
Esq. Attorney — Parents
Legal Intern — Parents
- Legal Intern — Parents
Legal Intern Mother — Parents
INTRODUCTION
On March 9, 2015 I held a pre-hearing conference and on March 12, 2015 I held an impartial hearing pursuant to the Individuals With Disabilities in Education Act (IDEA), 20 U.S.C. 1415(f)(1) regarding the education program of a school-aged child, (“ ”). The hearing commenced at and was held at the Impartial Hearing Office, . A list of witnesses testifying and documents received into evidence are attached to this Decision and Order.
BACKGROUND
is old and is classified as having . He currently attends a program at in . In a letter dated November 7, 2014, ’s parent, by her attorney, , Esq., Supervising Attorney of ., and and , Legal
Interns, filed a due process request for an impartial hearing (DOE Ex. 1; Parent’s Ex. N).
In that request, the parent alleged, among other things, that the Department of Education failed to provide with a Free and Appropriate Education (“FAPE”) for the 2014-2015 school year in that a program is not the least restrictive environment (“LRE”) for and that the most recent Department of Education evaluations were “somewhat inconclusive and void of any recommendations for ” As a result, the parent asserted, she requested Independent Educational Evaluations (“IEE”) to facilitate
’s placement in a less restrictive setting but that the Department of Education denied her request without requesting an impartial hearing to defend the evaluations as is required by New York State law, 8 NYCRR §200.5(g)(1)(iv) (DOE Ex. 1 at 1-2, Parent’s Ex. N at 1-2). As a remedy the parent asked for an Order directing the Department of Education to provide IEE’s at public expense and “to arrange for an evaluation by an consultant in order to properly determine what supplementary aids and services will support [ ’s] education in his LRE” (DOE Ex. 1 at 6-7; Parent’s Ex. N at 4-5).[1]
The Department of Education filed a response on November 18, 2014 (Parent’s Ex. O).
I was appointed as the Impartial Hearing Officer on February 9, 2015 after the prior hearing officer was recused. The original compliance date was January 26, 2015.
On February 19, 2015 at the request of the parent due to the prior hearing officer’s recusal, the compliance date was extended to February 25, 2015 and a hearing date was scheduled for March 12, 2015. On February 26, 2015 at the request of both parties for the availability of witnesses, the compliance date was extended to March 27, 2014. At the conclusion of the hearing on March 12, 2015 and at the request of both parties to submit briefs, the compliance date was extended to April 26, 2015 (recalculated by IHRS to April 27, 2015).
The extensions were granted after considering the cumulative impact of the factors enumerated in Section 200.5(j)(5)(ii) of the New York State Regulations of the Commissioner of Education (“Commissioner’s Regulations”) and a determination that there was a compelling reason for each of the extensions as required by Section 200.5(j)(5)(iii) of the Commissioner’s Regulations. Specifically, (a) the child was attending school and there was no negative impact on the child’s educational interest or well-being as a result of the delay; (b) in accordance with due process the parties were entitled to the opportunity to issue briefs based on the issue in the case and have this hearing officer review the transcript and consider the evidence and the closing briefs prior to the issuance of a Decision and Order; (c) there is no reason to conclude that there were any financial or detrimental consequences likely to be suffered by either party by the delay; and (d) for the reasons indicated above any prior delays due to the unavailability of witnesses did not require the denial of a subsequent extension request.
ISSUE TO BE RESOLVED
The issue to be resolved in this case is whether the parent is entitled to an IEE by an “ consultant” in order to determine the LRE for and the aids and services that would support in that program.
THE POSITIONS OF THE PARTIES
, Esq., and legal interns , - and , of ., represented the parent, (“ ”) at the impartial hearing. and represented the Department of Education (Hearing: 20-21).
At the impartial hearing the parties presented their opposing positons on the issue of whether the is entitled to an IEE at Department of Education expense and if so, the type of IEE that she is entitled to.
’s position was that she asked for an IEE several times prior to the filing of the impartial hearing request and that the Department of Education denied her request in violation of the applicable law. The attorneys for asserted that under the prevailing law, since the Department of Education did not request an impartial hearing to defend its evaluations it were required to grant her request for an IEE (Hearing: 65). The
Department of Education’s position was that never requested an “ ” and that in any event, since it did not conduct an evaluation with an consultant could not have disagreed with such evaluation and thus is not entitled to an IEE with an consultant. Rather, the Department of Education representatives asserted, the District was ready and able to conduct an evaluation with its director and that if disagrees with the results of that evaluation, only then would she be entitled to an IEE with an consultant to determine whether can be instructed in a setting less restrictive that the mandated on his August 13, 2014 IEP
(Hearing: 43-44, 48-49).
This Hearing Officer determined that no witnesses were required to resolve the issue and directed the parties to file briefs by April 15, 2015 applying the applicable law to the facts of the case. ’s attorneys filed a brief on that date (IHO Ex. II). On April 16, 2015 Ms. sent an email indicating that the Department of Education would not be filing a brief in this matter (IHO Ex. III).
FINDINGS OF FACT
attended the for the 2013-2014 school year (DOE Ex. 6 at 1).
An IEP meeting was held on August 13, 2014 (DOE Ex. 4). Within a nine month period prior to that meeting the Department of Education conducted a Psycho-educational evaluation, a Classroom Observation, a Social History Update, and an evaluation (DOE Exs. 12, 14, 14, 15). The most recent evaluation was conducted in April 2013 (DOE Ex. 16). The “Evaluation Results” section of the IEP developed at the August 18, 2014 meeting references only the Psycho-educational evaluation (DOE Ex. 4 at 1). That evaluation report states that the parent requested the “re-evaluation”2 because she believed that should be in a less restrictive
“Re-evaluation” presumably refers to the prior Psycho-educational evaluation that the Department of setting. The report detailed the findings but deferred recommendations to the Committee on Special Education (CSE) (DOE Ex. 12).
The CSE Minutes of the August 13, 2014 IEP meeting indicate that did not agree with the setting and that she would like to attend an class (DOE Ex. 6 at 1). The Minutes also indicate that requested another evaluation because the one conducted by the Department of Education was . stated at the IEP meeting that she did not believe was in the appropriate setting because he was not being exposed to “ ” The IEP team did not consider setting or any setting outside of two reports describe as “ ” and because of his “ ” (DOE Ex. 6 at 2). was placed in program at in , which he currently attends (DOE Ex. 1at 3, Ex. 11; Parent’s Ex. N at 1).
In a letter dated October 7, 2014, approximately one month prior to the filing of the impartial hearing request, the parent wrote a letter to the assistant principal of ’s current school asking for an IEE “at public expense” because the evaluation administered in June 2014 evaluation was not “comprehensive” in that it did not assess ’s needs in :
1) ; 2) ; 3) ; 4)
; 5) ; 6) ; and
6) . asked for “these Independent Educational Evaluations to be done as quickly as possible so that we can fully address [ ’s] needs” and asked for the school’s “guidelines for this process” (DOE Ex. 21). The Department of Education did not provide the IEE or ask for an impartial hearing to defend its evaluation (DOE Ex. 1 at 4; Parent’s Ex. N at 2). Both parties agreed that the Department of Education did not offer to evaluate with its expert until December 9, 2014, one month after the impartial hearing request had been filed (Hearing: 40; Parent’s Ex. P).
In their brief for her attorneys expand on their arguments at the impartial hearing and ask for an Order directing the Department of Education “to arrange for” an IEE “by an consultant at public expense in order to properly determine the what supplementary aids and services will support [ ’s] education in his” LRE (IHO Ex. II at
9).
Education conducted almost eight months earlier on November 5, 2013.
CONCLUSIONS OF LAW AND DISCUSSION
The purpose behind the Individuals with Disabilities Education Act (“IDEA”) 20 U.S.C. §§ 1400-1482 is to ensure that students with disabilities have available to them a FAPE, a free and appropriate education in the least restrictive environment (“LRE”). The
Department of Education has the burden of demonstrating that it provided such students with that standard. 20 U.S.C. § 1400(d)(1)(A); see Schaffer v. Weast, 126 S. Ct. 528, 531 (2005); Board of Education v. Rowley, 458 U.S. 176, 179-81, 200-01 (1982); Frank G v.
Board of Education of Hyde Park, Central School District, 459 F.3d 356, 371 (2d Cir.
2006); Application of the Board of Education of the Colton Pierrepont Central School District, Appeal No. 08-005. A FAPE includes special education and related services designed to meet a child’s unique needs, provided in conformity with a comprehensive written IEP. 20 U.S.C. § 1401(9)(D) 34 C.F.R. § 300.13; see 20 U.S.C. § 1414(d); 34 C.F.R. § 300.347; Rowley at 181-182. A school District offers a FAPE by “providing personalized instruction with sufficient support services to permit a child to benefit educationally from that instruction.” Rowley, 458 U. S. at 203. An IEP must accurately reflect the results of evaluations to identify the child's needs, provide for the use of appropriate special education services to address the child's special education needs, and establish annual goals and short-term instructional objectives which are related to the child's educational deficits. See R.E, v. New York City Dept. of Educ., 694 F.3d 167, 175 (2nd Cir. 2012).
The IDEA mandates that “[t]o the maximum extent appropriate, children with disabilities … are educated with children who are not disabled, an special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only when the nature or severity other disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.” 20 U.S.C. §1412(a)(5)(A); P. Ex. Rel. Mr.
and Mrs. P v. Newington Board of Education, 546 F.3d 111, 120 (2d Cir. 2008). The
IDEA has a “strong preference for children with disabilities to be educated ‘to the maximum extent appropriate’ together with their non-disabled peers.” Id. citing Walzak
v. Fla. Union Free School District, 142 F.3d 119, 122 (2d Cir. 1998). The presumption in favor of mainstreaming must be weighed, on a case by case basis and “where the nature or severity of the handicap is such that education in regular classes cannot be achieved satisfactorily, mainstreaming is inappropriate.” Briggs v. Board of Education of
Conn., 882 F.2d 688, 692 (2d Cir. 1989; Newington, 546 F. 3d at 119.
The Second Circuit enunciated a two-pronged test to determine whether a particular placement is the LRE for a child. (1) It must be determined whether education in the regular classroom, with the use of supplemental aids and services, can be achieved satisfactorily for a given child and (2) if not, whether the “school has mainstreamed the child to the maximum extent possible. Newington, 546 F.3d at 120 citing Daniel RR v.
State Board of Education, 874 F.2d 1036, 1048 (5th Cir. 1989). In considering the first prong of this analysis a court must consider several factors, including: a) whether the school district has made reasonable efforts to accommodate the child in a regular classroom; b) the educational benefits available to the child in a regular class, with appropriate supplementary aids and services, as compared to the benefits provided in a special education class; and c) the possible negative effects of the inclusion of the child on the education of the other students in the class. Newington, 546 F.3d at 120; Oberti v.
Clementon School District, 995 F.2d 1204, 1215, 1217-1218 (3d Cir. 1993).
If a parent disagrees with an evaluation obtained by the school district, the parent has a right to obtain an IEE at public expense. 8 NYCRR 200.5[g][1]. An IEE is as "an individual evaluation of a student with a disability or a student thought to have a disability, conducted by a qualified examiner who is not employed by the public agency responsible for the education of the student" (8 NYCRR 2 00.1[z]; see 34 CFR 300.502[a][3][i]). Once the parent has requested an IEE at public expense, the district must, "without unnecessary delay," either provide an IEE at public expense or file a due process complaint notice to defend its evaluation as appropriate at an impartial hearing (34 CFR 300.502[b][2]; 8 NYCRR 200.5[g][1]. Furthermore, as part of a hearing, IHOs are vested with the authority to request that a student be evaluated at district expense (34 CFR 300.502[d]; 8 NYCRR 200.5[g][2], [j][3][viii]). Application of the XXXXXXX,
No. 14-010.
In this case the parent’s position in both the impartial hearing request and her brief is that the class recommended for is not the LRE for him and that the evaluations conducted by the District did not properly assess whether he could receive an educational benefit in a less restrictive environment with specified “aids and supports”
(DOE Ex. 1; IHO Ex. II at 9). The evidence submitted at the impartial hearing shows that raised this issue at the August 13, 2014 IEP meeting where she appeared without an advocate or attorney. At that time she disagreed with the recommendation of a class and stated that she would like to be in an “ class” “ ” (DOE Ex. 6 at 1-2). As described in the “Findings of Fact” above in an October 7, 2014 letter to the Assistant Principal of the school currently attends, asserted that the June 2014 evaluation was not comprehensive in that it did not address several specified areas and that she would like “these Independent Educational Evaluations” to
“fully address needs” (DOE Ex. 21).
I find that CSE Minutes and the October 7, 2014 letter notified the Department of Education that disagreed with the results of the evaluations conducted by the District and that she was requesting an IEE at public expense. It is undisputed the District did not request an impartial hearing to defend its evaluations.
I do not agree with the District’s position at the impartial hearing that an evaluation with an consultant is materially different from the District’s evaluation and note that the District did not submit a brief or any case law to support its position. It is clear that expressed her disagreement with the evaluations that resulted in the program recommendation and thus is entitled to an IEE. The fact that she is requesting an evaluation with an consultant simply reflects her disagreement with the Department of Education evaluation on the ground that it did not address, accurately or otherwise, all of the factors necessary to determine the LRE for under the prevailing law. See 20 U.S.C. §1412(a)(5)(A).
In light of the foregoing I am Ordering the Department of Education to arrange for an IEE with an independent consultant at public expense to provide relevant information about the LRE for and what aids and services will support him in that LRE (DOE Ex. 1 at 6-7; IHO Ex. II at 9). Within ten days of the receipt of the IEE results the Department of Education is to convene a CSE meeting with all of the required members present and any persons relevant to ’s education as requested by , to develop an IEP and recommend a program that is the LRE for taking into consideration the results of the IEE as well as other information relating to that is relevant to his LRE and the development of an IEP that is appropriate to meet his special education needs.
ORDER
In light of the above findings of fact, it is hereby Ordered that:
1) immediately upon receipt of this Decision and Order the Department of Education to provide the parent with information about an IEE and is to arrange for an IEE with an independent consultant at public expense to provide relevant information about the LRE for and what aids and services will support him in that LRE; and
2) within 14 days of the receipt of the IEE results the Department of Education is to convene a CSE meeting with all of the required members present and any persons relevant to ’s education as requested by , to develop an IEP and recommend a program that is the LRE for taking into consideration the results of the IEE as well as other evaluations and information relating to that is relevant to his LRE and the development of an IEP that is appropriate to meet his special education needs.
Dated: April 27, 2015
, ESQ.
Impartial Hearing Officer
PLEASE TAKE NOTICE
Within 35 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.
“The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period. ” (8NYCRR279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.
Directions and sample forms for filing an appeal are included with this decision. Directions and forms can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.
DOCUMENTATION ENTERED INTO THE RECORD
Department of Education:
Exhibit 1 Impartial Hearing Request
dated November 7, 2014, 8
pages
Exhibit 2 Individualized Education
Program Amended to Include
a dated
January 29, 2015, 18 pages
Exhibit 3 Prior Written Notice (Notice
of Recommendation) dated
January 29, 2015, 4 pages
Exhibit 4 Individualized Education
Program dated August 13,
2014, 17 pages
Exhibit 5 Prior Written Notice (Notice
of Recommendation) dated
September 3, 2014, 4 pages
Exhibit 6 Minutes of Committee on
Special Education Office 3
dated August 13, 2014, 3
pages
Exhibit 7 Individualized Education
Program dated February 27,
2014, 19 pages
Exhibit 8 Prior Written Notice (Notice
of Recommendation) dated
April 3, 2014, 4 pages
Exhibit 9 Minutes of Committee on
Special Education Office 3
dated February 27, 2014, 3
pages
Exhibit 10 School Location Letter for
Placement dated September
3, 2014, 1 page
Exhibit 11 Authorization to Attend
Letter dated September 29,
2014, 1 page
Exhibit 12 Psycho-educational
Evaluation dated June 28,
2014, 6 pages
Exhibit 13 Observation dated January
23, 2014, 2 pages
Exhibit 14 Social History Update dated
January 8, 2014, 3 pages
Exhibit 15
Evaluation dated December
27, 2013, 4 pages
Exhibit 16 / Initial
Evaluation various dates, 10
pages
Exhibit 17 /
Evaluation dated October 22,
2012, 5 pages
Exhibit 18 Psycho-educational
Evaluation dated November
5, 2013, 7 pages
Exhibit 19 Letter and Documents from
Parent to Attendance Teacher
dated January 29, 2015, 6
pages
Exhibit 20 – Individual Student
Attendance Report dated
2014-2015, 1 page
Exhibit 21 Letter from the Parent to
Assistant Principal dated
October 7, 2014, 1 page
Parent:
Exhibit A Psycho Educational
Evaluation date November 4,
2011, 8 pages
Exhibit B Comprehensive
Evaluation
dated March 2, 2012, 6 pages
Exhibit C Individualized Education
Program dated December 19,
2012, 17 pages
Exhibit D Evaluation –
dated
April 10, 2013, 5 pages
Exhibit E Evaluation –
dated
April 15, 2013, 6 pages
Exhibit F Omitted as Duplicative
Exhibit G Individualized Education
Program dated February 27,
2014, 19 pages
Exhibit H
dated February 27, 2014, 10
pages
Exhibit I
Evaluation dated April 2,
2014, 9 pages
Exhibit J Omitted as Duplicative
Exhibit K Omitted as Duplicative
Exhibit L Omitted as Duplicative
Exhibit M Omitted as Duplicative
Exhibit N Due Process Complaint dated
November 7, 2014, 7 pages
Exhibit O Due Process Response dated
November 18, 2014, 4 pages
Exhibit P NYC DOE
Resolution Agreement Form
dated December 9, 2014, 2
pages
Exhibit Q A Parent’s Guide, undated 2
pages
Impartial Hearing Officer:
Exhibit I Case Follow Up sheets
Indicating Extensions of the
Timeline, various dates, 3
Pages
Exhibit II Parents’ Closing Statement
dated April 15, 2015, 13
pages
Exhibit III Email from re:
Brief dated April 16, 2015, 1
page
Footnotes
[1] The discussion at the impartial hearing and the brief submitted by the parent clarifies that the parent is asking that the Department of Education arrange for an IEE by an consultant at public expense and that the parent does not want the Department of Education to conduct the evaluation with its own consultant.