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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: May 12, 2015
Actual Record Closed Date: June 1, 2015
: Craig Tessler, Esq.
’s
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 12, 2015
Parents
District Representative — DOE
District Administrator — DOE
’s — DOE
I. Introduction — DOE
On April 1, 2015, I was appointed to conduct an impartial hearing pursuant to 20 U.S.C. §1415 to determine the special education of (" "); the hearing was held on May 12, 2015. Lists of persons in attendance and documents received in evidence are appended to the record.
II. Background
is a year-old student not currently with a disability. In
November, 2014, ’s parent referred him for evaluation to the Committee on (CPSE), because of concern about ’s skills. A Evaluation was done on December 5, 2014 (Exh. C), and a , and Evaluation was done on January 8, 2015 (Exh. B). The CPSE met on March 20, 2015 (T. 34) and determined that was not qualified for as a student with a disability.
’s parent, requested the hearing on April 1, 2015 (Exh. A), alleging that the CPSE did not meet until more than the 60 days past “
”
“ ” after in communication with others. The request seeks for ’s delays.
III. The CSE’s Case
, a department of education CPSE Administrator, testified (T.
13-31) that she has special education certification but is not a licensed ; her duties include reviewing evaluations and developing Individualized Education (IEP)s. Ms. participated in an “ ” regarding ; other participants were the parents, personnel from the agency that evaluated , and another district administrator, who is also a / . The CPSE recommended that did not qualify for and , because he did not exhibit a in domains or a in domain. (T. 19). She stated that the and evaluation showed that scored in the , and that the CPSE does not consider articulation or intelligibility to be a domain, because it is developmental and can disappear over time. (T.
’s
19). The other district administrator/ who participated in the meeting said that was age appropriate and did not require . Ms.
stated that did exhibit articulation concerns, but not sufficient to qualify him as a student with a disability. (T. 21). Ms. stated that she did not agree with the and evaluation, because she did not like the way it was written and the evaluator failed to state that had age-appropriate skills, although the information in the evaluation is correct. (T. 25-27). The CPSE did not request another and evaluation.
IV. The Parent’s Case
’s parent testified (T. 31-46) that he did not understand why the CPSE did not recommend and , because the and evaluation states that would benefit from . exhibited some delays during
2013/14, and was evaluated for , but did not qualify. He continues to exhibit “ ” including , and , and ; he tends to . Mr. requested the evaluations in November, 2014, and they were done in ’s school on December 5, 2014, but the IEP meeting was not held until March 20, 2015. ’s teacher participated in the IEP meeting, and expressed concern about ’s : she told the CPSE that had
.
The Evaluation (Exh. C) states that exhibited . The evaluator concluded that has a , and recommended a
- evaluation.
The , and Evaluation (Exh. B) states that on standardized testing, an average score in (standard score
(“ ”)
he achieved a
’s
. He exhibited
. The evaluator concluded that ’s receptive and inconsistencies impact his communicative efficiency across people, situations and environments. “ ” The report recommends formal and to facilitate development of effective receptive and skills, facilitate effective sound production, and reduce dysfluencies, with goals to facilitate processing, pragmatic communication, , articulation, and fluency skills.
V. Findings of Law and Fact
I find that is eligible for as a student with a disability, and that he should receive and as recommended by the , and Evaluation.
I find that the CSE inappropriately determined that was not eligible for as a student with a disability. The Individuals with Disabilities Education Act (IDEA) defines a "child with a disability" as a child with a specific physical, mental or emotional condition, "who, by reason thereof, needs special education and related services" (20 U.S.C. § 1401[3][A]; Educ. Law § 4401[1], [2][k]). In order to be classified, a student must not only have a specific , , but such condition must adversely impact upon a student's educational performance to the extent that he or she requires special services and programs (34 C.F.R. § 300.8[a], [c]; see 8 NYCRR 200.1[zz]; Application of the Bd. of Educ., Appeal No. 11-021. 8 NYCRR
§200.1(mm) states that eligibility as a student with a disability shall be based on the results of an individual evaluation, and to be identified as having a disability a student shall either: exhibit a significant delay or in or more functional areas related to cognitive, and communicative, , socio-emotional or motor development which adversely affects the student's ability to learn, as documented by the results of the individual evaluation; or meet the criteria set forth in ’s paragraphs (1), (2), (3), (5), (9), (10), (12) or (13) of 8 NYCRR §200.1(zz). 8 NYCRR
§200.1(zz) (11) defines the criteria for a or as a communication , such as , impaired articulation, a or a voice , that adversely affects a student's educational performance.
Whether a student's condition adversely affects his or her educational performance such that the student needs special education within the meaning of the IDEA, is determined on a "case-by-case" basis. (Corchado v. Bd. of Educ. Rochester City Sch. Dist., 86 F.
Supp. 2d 168, 176 [W.D.N.Y. 2000]; see Maus v. Wappingers Cent. Sch. Dist., 688 F.
Supp. 2d 282, 294 [S.D.N.Y. 2010]; Application of the Dep't of Educ., Appeal No. 08-
042; Application of a Student Suspected of Having a Disability, Appeal No. 08-023;
Application of a Child Suspected of Having a Disability, Appeal No. 07-086; see Muller
v. E. Islip Union Free Sch. Dist., 145 F.3d 95, 103-04 [2d Cir. 1998]; N.C. v. Bedford
Cent. Sch. Dist., 473 F. Supp. 2d 532, 543 [S.D.N.Y. 2007], aff'd 2008 WL 4874535 [2d Cir. Nov. 12, 2008]; C.B. v. Dep't of Educ., 2009 WL 928093 [2d Cir. April 7, 2009];
New Paltz Cent. Sch. Dist. v. St. Pierre, 307 F. Supp. 2d 394, 399 [N.D.N.Y 2004]; K.M.
v. Wappingers Cent. Sch. Dist., 2010 WL 451046 [S.D.N.Y. Feb. 9, 2010]; A.J. v. Bd. of Educ., East Islip Union Free Sch. Dist., 2010 WL 126034 [E.D.N.Y. Jan. 8, 2010]).
I find that has a or as defined by 8 NYCRR
§200.1(zz) (11), and that this adversely affects his educational performance.
The Evaluation states that has a significant delay in his . The / Evaluation notes that ’s receptive and I credit the testimony of ’s parent that ’s teacher told the CPSE of concerns that ’s and communication skills had an adverse impact on his classroom and social skills. I further credit the parent’s testimony regarding ’s difficulties, and the concomitant effect it has on his classroom and social skills. I conclude that ’s significant or has an adverse impact on his educational performance, that he should be as a student ’s with a disability, and that he should receive and as recommended by the / Evaluation.
I cannot determine if the CPSE was late in holding the meeting to discuss ’s evaluations, because the parent could not remember the date of his referral or consent for evaluation. (Assuming the parent was correct in his testimony that the referral/consent date was in mid-November, the 60 school days in which the CPSE meeting should have been held would have made the deadline early March, to weeks before the March 20, 2015 meeting.) I will, however, award as compensation the amount of would have received if the CPSE had correctly him and mandated at the March 20, 2015 meeting.
VI. Order
IT IS THEREFORE ORDERED THAT: a) shall be as a student with a disability; b) by June 25, 2015, the CPSE shall hold a review and create an IEP for that mandates and in accordance with the , and Evaluation dated January 8, 2015; and c) as compensatory services, shall receive additional and sessions in an amount equal to the number of sessions he would have had if the service were recommended on March 20, 2015, until the date the service begins.
Dated: June 15, 2015
CRAIG TESSLER,ESQ.
Impartial
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
’s
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.
’s
DOCUMENTATION ENTERED INTO THE RECORD
PARENT
A Hearing Request, 4/1/15, 2pp
B , , and Evaluation, 1/8/15, 8pp
C - Education Evaluation, 12/5/14, 4pp