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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 18, 2015
May 6, 2015
May 18, 2015
June 3, 2015
Actual Record Closed Date: July 31, 2015
Hearing Officer: Jeanne M. Keefe, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED AT THE HEARING
3/18/15 Hearing Date:
For the Student:
, Esq. (via phone)
For the District:
, District Representative (via phone)
5/6/15 Hearing Date:
For the Student:
, Esq.
, Parent
, Parent
For the District:
, District Representative
Dr. , School Psychologist (via phone)
, Teacher (via phone)
, (via phone)
5/18/15 Hearing Date:
For the Student:
, Esq.
, Parent
, Parent
, (via phone)
, (via phone)
For the District:
, District Representative
, (via phone)
6/3/15 Hearing Date:
For the Student:
, Esq.
, Parent
, Parent
, (via phone)
For the District:
, District Representative
INTRODUCTION
On February 12, 2015 I was appointed as the Impartial Hearing Officer (“IHO”) by the New York City Department of Education (“the District” or “DOE”) to conduct a hearing pursuant to the Individuals with Disabilities Education Act (“IDEA”) 20 United States Code, §1415 (f) (1) concerning a dispute involving a special education program for (“ ” or “the student”) for the 2014-2015 school year.
BACKGROUND
is an child who attended the at in the 2014-2015 school year. The Parents assert that the District failed to provide with a free and appropriate public education (“FAPE”) for the 2014-2015 school year based on procedural and substantive grounds. The Parents sought to have classified as a student in . The District found ineligible for special education services. The Parents assert that the failure to classify as a student resulted in the Parents having to unilaterally supplement ’s educational program with the following:
; at the (“ ”) ; and (“ ”) services. The Parents seek reimbursement for the aforementioned services as well as based on the Districts failure to adhere to regulations related to its affirmative actions under child find and gross negligence.
The District contends that was provided with FAPE for the 2014-2015 school year.
FINDINGS OF FACT
has attended since , prior to that she attended preschool. She had the same teacher for both and . In her Parent started to feel that she was not learning as quickly as some of the other students in her class and by she testified that she began to see the gap between the abilities of and her peers widening. The Parent expressed her concerns to her teacher and asked that be considered for the .
is an after school program in which students received in either or . It meets after school for . The teacher did not recommend for that program. When she was not put in day, the Parent testified that, she enrolled in . provided a customized program and worked independently, was and was tested. In was recommended to participate in day. (t. 377-381, 108, Ex. 6) By the end of the was approaching for the . (t. 97, 384) In May 2014 the Parents had evaluated at because they felt there were some communication issues even with the support she was receiving through day and . (t. 385)
On 5/27/14 was given an evaluation by . Prior to the evaluation was given a hearing test, by Dr. , and her hearing was found to be normal. According to Ms. the Parents referred because they felt that she had difficulties with and and was not working up to her potential at school. The test was given and took .
did not have any . The evaluation found that has , , , and ( ). found were in , and ( ). The evaluation found that has a lot of strengths in and but her in will cause . The evaluation report recommended and in school. Ms. testified that her understanding of is that they are building level accommodations and a way that a child will get accommodations in the classroom. (Ex. 14, t. 266-268, 284, 306, 318, 334-35) After the evaluation Ms. and Dr. met and made the decision to do a complete evaluation as Ms. felt that there were some memory issues and was concerned about and noise. The evaluation is done with and there are . The words are never completely quiet, there is and a competing message. It looks at how a message is being understood. The evaluation was done on 7/23/14. The evaluation found that had numerous strengths, and the following :
. The recommendations were to be implemented under the guidance of a . Dr. testified that in both the hearing test and the evaluation was able to pay attention and understand the directions. The purpose of the evaluation was to determine whether an problem might be adversely impacting ’s academic performance, and that identifying might help identify strategies to be addressed with . When asked whether the evaluation found that had an problem Dr. testified that the results of the evaluation show that “… potentially, the fact that she does have some difficulty in noise and the ability to follow along when somebody is being— speaking quickly, and according to the guidelines, the guidelines of 2015— 2005, that would suggest that since two tests w ere outside the range of norm al, that there is an disorder that is occurring.” An disorder is defined by Dr. as a person who has . (Ex. 13, t. 230, 336-338, 341, 349-51, 363)
The Parents met with the principal of in July 2014, provided her with the evaluation (Ex. 14) and explained that they felt that was in need of specialized services. The Parent testified that the principal had reviewed the evaluation prior to their meeting and recommended that the Parents pursue an individualized education program (“IEP”) for and explained the process. In addition, the Parent testified that the principal stated that would be provided with like what she might receive from an IEP, but informally. It was the Parents impression that the principal recognized the issues and wanted to provide assistance. The evaluation (Ex. 13) was provided to the school in September. On September 4, 2014 the Parents sent a letter to the principal formally requesting that be considered for special education services. (t. 389-91, 413, Ex. 5) In October of 2014 the Parents hired a for as the had been discontinued. (t. 392)
entered the in a general education classroom at in September 2014 and her teacher was . Ms. testified that at the beginning of the school year was approaching in certain areas based on her informal assessments. By May of 2015 was meeting . She testified that receives . In addition, the teacher collaborated with the (“ ”) teachers and the , Ms. on . She provides with frequent . The an also provided with some services in and and . Ms. testified that meets expectations in . (t. 96-99, 105) In a review of ’s report card Ms. testified that made progress in the . (t. 106-07, Ex. 2) Ms. testified that as of May, 2015 was meeting grade expectations overall but that there were areas of weakness which they were working on. The in and are not . (t. 108-12, Ex. 1)
was provided with of by , at . The was individualized to and was provided , as a service and as a service.
In order to prepare providing services to Ms. spoke to the classroom teacher, gleaned information about during a (“ ”) meeting held at the beginning of the school year. The consists of the head of special education, a , Ms. and another , a and coach and on some occasions the principal attends. The is a team of special educators who discuss students who might be having problems in their classrooms. She also reviewed the evaluation and evaluation. Ms. found that did not have deficits in receptive or expressive but noticed that she is slow to process information and would benefit from in order to . She did not find that had a problem with . It was her opinion that did not need to make academic progress. (t. 65, 132, 135, 138-42, 146, Ex. 4)
After the request by the Parents for consideration of special education services for an (“ ”) was scheduled. An is the meeting held after a student has been evaluated, the reports have been prepared where the parents and the (“ ”) come together to discuss the results of the evaluations and make a determination as to whether or not a student is in . (t. 60) In preparation for that meeting a psychoeducational evaluation was prepared by Dr. , school psychologist. The purpose of the psychoeducational evaluation is to look at the student’s , and their academic achievement. Dr. found that scored within the in which is the range to be expected for most students of her age and . She found that her comprehension was very strong and her abilities in the . She did find that ’s was in the . In preparation for the evaluation she reviewed the evaluations provided by the Parents. She also spoke to the classroom teacher and asked Ms. to describe ’s classroom performance. In the course of the evaluation Dr. had found to be very , . The teacher told her that description is consistent with how she is in the classroom. (t. 49-56, Ex. 7)
On 11/12/14 the met to consider whether was eligible for special education services. (t. 102, 132, 166) It is the practice of the to have the Parents wait outside until all team members are assembled. The purpose of the meeting was to review the results of the psychoeducational evaluation; review the results of the privately conducted evaluations and how to apply them to classroom performance; and to come to a recommendation about whether or not needed special education services. In order to prepare for the meeting Dr. , who acted as both the district representative and school psychologist, asked the DOE to review the reports and attend the meeting. She asked the to review the evaluations and spoke to the classroom teacher. At the beginning of the meeting the Parents were informed that the had shared information among themselves, that they had things to discuss with the Parents, hear their concerns and come to a consensus, if possible, at the meeting. (t. 57-59). ’s Parents attended the meeting and were given the opportunity to participate and express their concerns. (t. 59-61, 133, 167-68, 103) The psychoeducational evaluation was provided to the Parents at the meeting and Dr. concedes that it was her error in not getting it to them sooner. The Parent testified that he received the psychoeducational evaluation at the meeting and had no chance to review it prior to the meeting placing him at a disadvantage. (t. 55, 414-15) The and the Parents discussed the results of the reports. At the conclusion of the meeting the team made a recommendation, based on the reports and evaluations before them, that was not eligible for special education services. (t. 62, 104, 134, 169, Ex. 9) The Parents expressed surprise at the team decision finding ineligible for special education. It was explained to the Parents that the level of need that required was very consistent with that of a general education student and that she did not require special education services. The Parents were advised that they could apply for . (t. 63, 105, 134-35, 169)
The Parents met with the principal subsequent to the meeting and applied to receive for . (t. 441, Ex. 8) The accommodation request was granted though the Parent testified that she was not aware of a meeting. She also testified that she emailed the principal in March, 2015 to ask about it and received an email back that had been granted. (t. 121, 403-04, Ex. 8)
CONCLUSIONS OF LAW
The Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §1400-1482) has as its core tenet the assurance that students with disabilities have available to them a free and appropriate public education (“FAPE”) (20 U.S.C. §1400 (d) (1) (A); see Schaffer v. Weast, 546 U.S. 49, 51 (2005); Bd. of Educ. v. Rowley, 458 U.S. 176, 179-81, 200-01 (1982); Frank G. v. Bd. of Educ., 459 F.3d 356, 371 (2d Cir. 2006). A FAPE includes special education and related services designed to meet the student’s unique needs, provided in conformity with a written IEP (20 U.S.C. §1401 (9) (D); 34 C.F.R. 300.17 (d); see 20 U.S.C. §1414 (d); 34 C.F.R. 300.320). As noted by the State Review Officer (“SRO”) in Application of a Student , Appeal No. 11-068 the burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition for a unilateral placement has the burden of proof regarding the appropriateness of such placement. (N.Y. Education Law § 4404 (1) (c); see MPG v. New York City Dep’t of Educ., 2010WL3398256 at *7 (SDNY Aug. 27, 2010). In the case at hand the Parents assert that the DOE failed to classify as a student which resulted in the Parents having to unilaterally supplement ’s educational program with the following: ; at the (“ ”) ; and (“ ”) services. The Parents seek reimbursement for the aforementioned services as well as based on the Districts failure to adhere to regulations related to its affirmative actions under child find and gross negligence.
I find that based on the testimony and evidence adduced at the hearing the District provided with FAPE for the 2014-2015 school year.
The SRO considered the type of procedural flaw which would result in a denial of FAPE in Application of the New York City Dept. of Edu., Appeal No 08-037. The SRO noted that not all procedural flaws automatically require a finding of a denial of FAPE. A hearing officer “may find that a student did not receive FA PE only if the procedural inadequacies: (a) impeded the student’s right to FA PE; significantly impeded the parent’s opportunity to participate in the decision making process regarding the provision of FA PE for the student; or caused a depriv ation of educational benefits.” (Matrejek v. Brewster Cent. School Dist., 471 F. Supp 2d 415, 419 (S.D.N.Y. 2007). The Parents assert that the failure to provide the Parents with a copy of the psychoeducational evaluation prior to the meeting significantly impeded the Parents opportunity to participate in the decision making process. Dr. admits that they were not provided with a copy of the psychoeducational and concedes that it was an error on her part. While this placed the Parents at a disadvantage I do not find that this failure significantly impeded the Parents opportunity to participate in the decision making process. The record reflects that both Parents fully participated in the meeting and made their position and objections to the outcome known to the .
FAPE is offered “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction” (Rowley, 458 U.S. at 203). A public school district is not required to provide essentially “everything that might by thought desirable by loving parents.” See Walczak, 142 F.3d at 132
The Parents assert that the District failed in its “child find” obligation under the IDEA. In J.S. v. Scarsdale Union Free School Dist., 826 F. Supp 2d 635 (2011) the court noted “To have failed in its obligation to identify students with disabilities, the District must have “overlooked clear signs of disability” or been negligent in failing to order testing” or been “negligent in failing to order testing” or there must have been “no rational justification for not deciding to ev aluate.” Further, the Court noted that the IDEA is not an absolute liability statute and the “child find” provision does not guarantee that every child will be found. In the instant case I do not find that the District overlooked clear signs of a disability, or was negligent. There is nothing in the record to support a finding that the District overlooked clear signs of a disability in . The Parent testified that she had a feeling in that was not doing as well as her peers, and in the mentioned this the teacher when seeking inclusion in the . In the the classroom teacher did recommend for day, but this in and of itself is not a red flag that should be evaluated under “child find”. There is nothing in the record to support a finding that the District knew, or should have known, that was a child . I credit the testimony of the Districts witnesses that , while she had some areas of weakness, was making academic progress and those were able to be addressed in a general education classroom.
I find the testimony and evidence submitted by the District to be credible. The Parents had tested by based on concerns that she had difficulty with and and was not working up to her potential at school. The testing at found that she had many strengths but some as well which could impact her in the classroom. It is noteworthy that with the exception of the recommended the evaluation (Ex. 14) recommended which Ms. described as building level accommodations. The testimony and evidence reveals that the evaluation (Ex. 13) was given in part to determine if has an problem which might be impacting ’s academic performance. Interestingly, when asked by the attorney for the Parents whether the evaluation found that had an problem Dr. did not give a clear yes or no but rather characterized it as “potentially”.
Ms. testified credibly that had some in and but that they work on them in the general education class and that they are not impeding her ability to make academic progress. The Parents provided with additional education services at and also a one to one tutor. There is nothing in the record, other than brief testimony by the Parent, as to what those programs consist of and what, if anything, they contributed to ’s academic progress. The Parents testified that as soon as they provided the evaluation to the principal she reviewed it and took steps to have , including , provided for . The Parents then requested that be evaluated for special educations services. The District did the required evaluations and observations. Ms. provided the to and based on her work with was of the opinion that was not warranted for the student. The of the were in agreement that was not a student in and that her needs could be met in the general education classroom with . , who taught on a daily basis and one was the who was providing services to Dr. , the third had done the psychoeducational evaluation. Based on the credible testimony of the Districts witnesses I do not find that the outcome of the meeting was predetermined but rather a consensus of school professionals based on the evaluations and information available to them.
ORDER
Therefore, it is hereby ordered that the Parent’s Due Process Complaint is dismissed.
Dated: August 10, 2015
JEAN KEEFE, 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 ON MAY 6, 2015
1. Card (2014-2015), dated 1/15, 6 pages District
2. Card (2013-2014), dated 2013-2014, 8 pages District
3. Omitted District
4. Progress Report, dated 1/2015, 1 District page
5. Parent’s initial request for Special Education services, dated 9/4/14, 1 District page
6. Social History Evaluation, dated 9/24/14, 2 pages District
7. Psycho-educational Evaluation Report, dated 11/12/14, 7 pages District
8. Request for , dated 11/26/14, 4 pages District
9. Ineligible for Special Education services, dated 11/12/14, 4 pages District
10. Prior Written Notice (Notice of Recommendation), dated 11/12/14, 3 District pages
11. Classroom Observation, dated 11/7/14, 1 page District
12. Progress Report, dated 11/12/14, 2 pages District
13. Evaluation, dated 7/23/14, 6 pages District
14. Evaluation, dated 5/27/14, 9 pages District
A. Due Process Complaint, dated 2/12/15, 7 pages Parent
B. NYC DOE Due Process Response, dated 2/23/15, 3 pages Parent
C. Psychoeducational Evaluation, dated 10/31/14, 4 pages Parent
DOCUMENTATION ENTERED INTO THE RECORD ON MAY 18, 2015
D. Itemized Statements and Parent Receipts, dated 9/8/14-3/23/15, 21 pages Parent
E. Invoice, dated 10/17/14-4/11/15, 1 page Parent
F. Letter from and Centers, dated 4/6/15, 1 page Parent
G. Not Entered—ID only Parent
POST HEARING SUBMISSION BY IMPARTIAL HEARING OFFICER
I. Statement of Adjournments and Extensions, undated, 1 page IHO
II. NYC Department of Education Closing Brief and Memorandum of Law, IHO dated July 10, 2015, 15 pages
III. Parents’ Closing Brief, dated July 10, 2015, 16 pages IHO