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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 19, 2015
June 11, 2015
Actual Record Closed Date: July 24, 2015
Hearing Officer: Craig Tessler, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 19, 2015
Attorney for Parent — Student
Parents
District Representative — DOE
District Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 11, 2015
Attorney — Student
Parents
District Rep. — DOE
District Rep. — DOE
Placement Officer (Via Telephone) — DOE
I. Introduction — DOE
On April 27, 2015, I was appointed to conduct an impartial hearing pursuant to 20 U.S.C. §1415, regarding the special education program of (" "); the hearing was held on May 19, and June 11, 2015. Lists of persons in attendance and documents received in evidence are appended to the record.
The decision deadline was extended at the parties’ request on June 11 and July 15, 2015, to allow time to prepare and submit post-hearing memoranda. Before granting the extension request, I found that the child was enrolled in and attending a school program, and determined that the extension would have no adverse impact on the child ’s educational interest or well-being, and no adverse financial or other detrimental consequences for the parties. I also determined that the extension request was not based on school vacations, or scheduling conflicts of the parties or their representatives. I received the parties’ post-hearing memoranda on July 24, 2015; copies are annexed to the record.
II. Background
is a student classified with a , who
attends the , (“ ”) a non-public ( )
program located in the (“ ” or the “district of location”). resides in , a part of (“ ”); is his “district of residence.” Classification as a student with a is not contested. On
September 3, 2014, , ’s parent, referred to the Committee on Special Education (CSE) for evaluation (Exh. 3), and gave the CSE a copy of a private done in July, 2014 (Exh. 7); she signed consent for evaluation on September 22, 2014 (Exh. 6). The CSE observed in on October 3, 2014 (Exh. 4), did a vocational interview on September 22, 2014 (Exh.9), and a evaluation on October 23, 2014 (Exh. 8).
A CSE meeting was held on December 2, 2014, and an IESP was developed (Exh.
1); participants included the parent, a school psychologist/district representative, a special education teacher, a general education teacher from , and a parent advocate.
The IESP references the testing results of the private , the Evaluation, and a from ’s 2013/14 private placement in (Exh. I), which states that had , identifying , , and . The section of the IESP reflect some of the recommendations of the private : , and , and . The CSE developed goals in , ,
, and . The IESP recommends
(“ ”) , for
, and . The (Exh. 3) note that ’s
classroom teacher reported he had difficulties with ,
, , and . The CSE gave the parent a list of department of education approved counselors and providers (Exhs.
F, G). A Prior Written Notice (Notice of Recommendation) was issued on December 4, 2014 (Exh. 16). The CSE issued authorizations for the services mandated by the IESP
(Exhs. D, E). On February 13, 2015, the parent advised the CSE that she was not able to find a provider to fulfill ’s mandate; a CSE staff member told the parent that the department did not have to provide the service, because did not attend school in (Exh. H). On March 5, 2015, the CSE Chairperson advised the parent’s attorney that because was parentally placed in , that district should provide his services. (Exh. 17, p. 2).
, Esq., the parent’s attorney, requested the instant hearing on April 27, 2015 (Exh. A), alleging, inter alia, that: the CSE did not implement until February 27, 2015, 10 weeks after the IESP meeting, and improperly terminated the service on April 15, 2015; during 2012/13 and 2013/14, the department of education failed to evaluate and identify him as a student with a , and provide him with required . Relief sought includes compensatory for the periods April 8, 2013 to June 20, 2014, and December 5, 2014, to April 15, 2015, implementation of the December 2, 2014 IESP, and reimbursement for the private
.
On May 19, 2015, at the parent’s attorney’s request, I determined that ’s “pendency” placement is the program and services mandated by the December 2, 2014
IESP, i.e., , and for
.
III. The CSE’s Case
, a department of education Placement Office assigned to , testified (T. 35-56) that in January and February, 2015, she communicated via email and telephone with ’s parent regarding the parent’s problems locating a provider. Ms. reviewed ’s file, and upon noting that he attended , she advised the parent that the district of location is responsible for providing services to students placed outside (the district of residence). Ms.
contacted a staff member of the , who informed her that the parent met with a school psychologist in October, 2014, to discuss a referral to , and that the school psychologist informed the parent that she must submit a referral letter, but that did not receive any further communication from the parent. M s.
again advised the parent to contact . IN March, 2015, Ms.
had a conference call with the parent’s attorney and the staff member regarding a parental referral to . Ms. stated that the district evaluated in December, 2014, and the parent received a “P4 Letter” from the district authorizing a qualified provider at department expense; she believed the evaluation and P4 Letter were “errors” by district staff who did not know attended school outside . In May, 2015, Ms. contacted the parent’s attorney to advise her there was a June 1 deadline for parents to report where their children would attend, and whether were requested; the attorney responded that the parent was unsure where would be placed in September, 2015, and requested an Individualized Education Program (IEP) meeting for possible placement. Ms. immediately scheduled a re-evaluation appointment, which the parent later cancelled and requested be re-scheduled. Ms. entered contemporaneous summaries of her communications regarding ’s case into the department’s computer system. (Exh. 12).
IV. The Parent’s Case
The parent testified (T. 61-111) that she referred for evaluation in 2010, but the CSE did not classify him with a . The parent also stated that received as a student.
attended private schools in from until September, 2014, when he entered . Ms. stated that was “ ” : he while in private school. In July, 2014, she had privately evaluated, because he was , despite , which he received from September, 2013, to February, 2015. The evaluation (Exh. 7) diagnosed with and a . Ms. referred to the CSE for evaluation on September 3, 2014 (Exh. 5), shortly after she received the evaluation; the written referral states that attends in . On September 22, 2014, Ms.
signed consent for evaluation (Exh. 6). The CSE did a classroom observation at (Exh. 4), and a teacher from participated in the December 2, 2014
IEP meeting via telephone. The CSE gave Ms. a list of approved providers
(Exh. G) at the IEP meeting, and she received a department Authorization for Independent several days after the IEP meeting, and the authorization was “reissued” on February 3, 2015 (Exh. C). She received a for dated January 13, 2015 (Exh. D). The parent contacted providers on the department’s list, but none was available to provide the service to , so she contacted the CSE for assistance, and Ms. helped her find a provider, although that provider was unable to provide the mandated number of hours. In February, Ms. told the parent that the department was not required to provide because attended an school. In April, the provider told Ms. he was told by the CSE that he could no longer provide the service. Ms. never received notice from that she had to request services from them. In October, 2014, after the CSE had evaluated but before the IEP meeting, Ms. telephoned and asked about ; she was told she could refer to the CSE for evaluation, but she did not do so, because the CSE already started their evaluation. Ms.
stated that she did not meet with a school psychologist, but had only telephone communication. The parent testified that still struggles with , and needs continued services to make any progress.
The by ,
, Inc., done on July 7 and 21, 2014 (Exh.
7), notes that was cooperative and made great effort during the testing. On the , achieved in , , and , and in and .
On the , achieved in , and in , , , and , , and . ’s ,
, and skills were more than
. He displayed relative strengths in and .
achieved a e in a test of . The evaluator
diagnosed with a , with impairments in reading
( ) and . The evaluation notes that in were observed, which will impact ’s performance in all academic areas. The evaluation recommends an IEP that provides for , using an evidence-based reading program such as or , a writing lab or , an class, an , a
, , , , and
.
The department of education’s Evaluation states that on the achieved in ,
, , and , and a
. The “ were at the except for . The report concluded that did not have , and did not require .
V. Findings of Fact and Conclusions of Law
I find that during 2013/14, the department of education failed to evaluate
1 and identify him as a student with a , and that the department did not provide FAPE for 2014/15 because it did not timely implement the services mandated by the December 2, 2014 IESP, and inappropriately terminated the services in April, 2015. I find that ’s parent is entitled to the cost of the private , and compensatory for the amount of service that was not provided after the December
1
I do not make this finding with regard to 2012/13, since a claim for most of that year is barred by the twoyear statute of limitations applicable to impartial hearings (20 U.S.C. §1415(b)(6)(B), and it would not affect the relief granted herein. 2, 2014 IESP. I find that the parent is not entitled to compensatory services for
2013/14.
A. Failure to Evaluate and Identify as a Student with (“Child Find”)
The purpose of the IDEA’s "child find" provisions is to identify, locate, and evaluate students who are suspected of being a student with a and thereby may be in need of special education and related services, but for whom no determination of eligibility as a student with a has been made (see Handberry v. Thompson, 446.
F.3d 335, 347-48 [2d Cir. 2006]; A.P. v. Woodstock Bd. of Educ., 572 F.Supp.2d 221, 225 [D. Conn. 2008] aff'd, 2010 WL 1049297 [2d Cir. March 23, 2010]; see also 20 U.S.C. § 1412[a][3][A]; 34 C.F.R. § 300.111; 8 NYCRR 200.2[a][7]). The IDEA places an affirmative duty on State and local educational agencies to identify, locate, and evaluate all children with disabilities residing in the State "to ensure that they receive needed special education services" (20 U.S.C. § 1412[a][3]; 34C.F.R. § 300.111[a][1][i]; Forest Grove, 129 S. Ct. at 2495; see 20 U.S.C. § 1412[a][10][A][ii]; see also 8 NYCRR 200.2[a][7]; New Paltz Cent. Sch. Dist. v. St. Pierre, 307 F. Supp. 2d 394, 400, n.13 [N.D.N.Y. 2004]). The "child find" requirements apply to "children who are suspected of being a child with a . . . and in need of special education, even though they are advancing from grade to grade" (34 C.F.R. § 300.111[c][1]; see 8 NYCRR 200.2[a][7]).
To satisfy the requirements, a board of education must have procedures in place that will enable it to find such children (Application of a Student Suspected of Having a , Appeal No. 10-009). This includes Procedures to locate, identify, and evaluate all nonpublic private elementary and secondary school students with disabilities, including -school children The child find activities for these students must be similar to activities undertaken for students with disabilities in public schools and requires that the school district consult with representatives of private schools and representatives of parents of parentally placed private school students with disabilities on the child find process. Because the child find obligation is an affirmative one, the IDEA does not require parents to request that the district evaluate their child (Application of a Student Suspected of Having a , Appeal Nos. 11-092 & 11-094; Application of a Child Suspected of Having a , Appeal No. 05-127). A district's child find duty is triggered when there is "reason to suspect a and reason to suspect that may be needed to address that " (New Paltz, 307 F. Supp. 2d at 400, n.13, quoting Dep't of Educ. v. Cari Rae S., 158 F. Supp. 2d 1190, 1194 [D. Haw.
2001]; Application of a Child Suspected of Having a , Appeal No. 06-092; Application of a Child Suspected of Having a , Appeal No. 06-087; Application of a Child Suspected of Having a , Appeal No. 05-127; Application of a Child Suspected of Having a , Appeal No. 05-040). To determine that a child find violation has occurred, school officials must have overlooked of and been negligent by failing to order testing, or have no rational justification for deciding not to evaluate (A.P., 572 F.Supp.2d at 225, quoting Bd. of Educ. v. L.M., 478 F.3d 307, 313 [6th Cir. 2007]).
I find that the department of education had reason to suspect that was a student with a , who required , but failed to identify him as such. There are two clear indications that had a : as the department acknowledged, was previously known to its CSE, and had received services, although de-classified in 2010 (Exh. 17, p. 5); and subsequent to that, he so that by 2014, while chronologically a , he was actually entering a . I find these are “ ” that had a and may have required , and that the department should have evaluated him. It was not disputed that from 2010 to June, 2014, attended school within , it was therefore the department of education’s responsibility to “find” and evaluate , whether he was enrolled in a public or private program. The department produced nothing at the hearing to indicate it had any kind of procedure “to locate, identify, and evaluate all nonpublic private elementary and secondary school students with disabilities,” as required by law and regulation; neither did it produce any communication between the department and the private programs to show that any inquiry was made of them regarding students who may have disabilities and need services. In its post-hearing memo, the department asserts that the parent should have referred to the CSE to trigger the “child find” obligation, but this is contrary to the law: “child find” is a school district’s affirmative obligation, and does not require a parental referral to trigger it. I conclude that the department ignored the that may have been a student with a , and that it violated the IDEA’s “child find” provisions by failing to identify and evaluate during 2013/14. As a remedy, I grant the parent’s request for reimbursement for the cost of the July, 2014 private . I do not grant the request for compensatory because of the child find violation (although I do grant it as remedy for the failure to provide FAPE during 2014/15 – see below), because there is insufficient evidence in the record to show what type of program had during 2013/14, what progress he made, and how any program deficiencies during that year should have been addressed. I cannot assume that the services appropriate in December, 2014, when the IESP was developed, are the same that would have been appropriate in Spring or Summer, 2013, when the 2013/14 program would have been developed.
B. Failure to Provide FAPE in 2014/15
A central purpose of 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 (20 U.S.C. §1400[d][1][A]; 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). A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07). School districts are required to locate, identify and evaluate all children in the district under 21 with disabilities. (20. U.S.C. §1412[a][3]). While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA (Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]). Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]). The IDEA directs that, in general, an impartial hearing officer's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak
v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Walczak, 142 F.3d at 130). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the LRE (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. §§ 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Walczak, 142 F.3d at 132). An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs, establishes annual goals related to those needs, and provides for the use of appropriate (Application of the Dep't of Educ., Appeal No. 07-018).
IDEA and Education Law §3602-c requires the school district where a nonpublic school is located to provide to parentally-placed students.
I find that the department of education failed to ensure that received his mandated for more than two months after the December 2, 2014 IESP, and that they inappropriately terminated the service in April, 2015. I credit the parent’s testimony that she received the private in August, 2014, and sought help from the CSE as soon as the school year started in September. I take note that the parent was not represented at that time, and credit her testimony that she was not aware that , as district of location, bore primary responsibility for evaluating , and that she referred him to the CSE because it was where they lived, and was the CSE that had evaluated and provided services before 2010. The parent informed the CSE that attended school in , they observed him there as part of the evaluation, and his attendance there was noted on the IESP and , yet during the evaluation and IESP process, the CSE never informed the parent of her right to have evaluated by and have them develop an IESP, or that was responsible for providing services to . “If the district of residence receives a request for an evaluation of a student suspected of having a who is parentally placed in a nonpublic school in another district, and the parent is not seeking to enroll the student in the public school, the district of residence should notify the parent or his/her right to request an evaluation from the district of location and the development of an IESP from the district of location.” (Exh. 15, p. 12). “Education Law § 3602-c "does not imply that parents may not also seek a FAPE for a privately placed child from the district of the parents' residence" (J.S. v. Scarsdale Union Free Sch. Dist., 2011 WL 5925309
[S.D.N.Y.Nov. 18, 2011].” As noted in the September, 2007 SED Guidance Memo regarding parentally-placed nonpublic school students pursuant to IDEA and Education Law §3602-c (Exh. 15), a parent may request evaluations from the district where the nonpublic school is located as well as the district where the child resides, “but it is generally not advisable [to subject] a student to testing by separate school districts in close proximity of time…” Here, the parent started the evaluation process in the CSE, and was not informed of the right to have the evaluations done by .
The parent contacted on her own initiative to inquire about getting services there; when she was told it would require starting anew the referral/evaluation process, she reasonably decided to continue with the evaluation process. It was not until February, 2015, when the parent contacted the CSE about her problems in securing a provider, that she was informed that was responsible for providing the service; at this point would not provide the service for 2014/15, because it was more than 30 days after was classified with a (Exh. 13, p. 1). The
CSE told the parent that she must apply to for for 2015/16; they never told the parent that they would not provide the service during 2014/15. I find that the was terminated inappropriately in April, 2015, without written notice or reason given to the parent. The parent had every reason to believe the CSE would provide ’s
: they conducted the evaluation, developed the IESP, gave the parent authorization to find a provider and a list of provider, and assisted her in locating a provider, all with knowledge that attended school in . The parent relied on the department to provide the service, and it would be inequitable, unjust, and deleterious to ’s education to sustain their attempt to discontinue the service without prior written notice or reason, at a time when the service was not available from . I conclude that the department failed to provide FAPE to for 2014/15 by not implementing until almost two months after the December 2, 2014 IESP, and by inappropriately terminating the service in April, 2015. This conclusion is only for 2014/15. The parent is now on notice that she must request services from the district of location, and if continues to attend school in , that district should implement the IESP (or develop their own IESP). As a remedy for the deprivation of FAPE during 2014/15, I shall order that the parent is entitled to of as compensation for services missed during 2014/15; these services shall be supplied by the department, and may be used at any time through 2015/16 and 2016/17.
I have considered the parties’ remaining arguments, and find it not necessary to address them in light of the foregoing conclusions.
VI. Order
IT IS THEREFORE ORDERED THAT: a) upon presentation of proper proof of payment, the department of education shall reimburse ’s parent for the reasonable cost of the July, 2014 by , Inc.; b) the department of education shall fund of as compensation for services missed during
2014/15, provided that these services may be used at any time through 2015/16 and
2016/17; and c) the parent’s request for compensatory services based on the department’s failure to meet its “child find” obligations during 2012/13 and 2013/14 is denied.
Dated: August 18, 2015
CRAIG TESSLER, 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
PARENT
A Due Process Complaint dated 4/27/15 6 pages
B IESP dated 12/2/14,[8] pages
C Authorization for Independent Special Education dated 2/3/15,2 pages
D , dated January 13th, 2015, one page
E Letters from the Department, dated May 19th, 2015 and April 21st, 2015, four pages
F List of , dated December 2013,[11] pages
G List of Service Providers for , 37 pages
H Emails between the parent and the, the CSE chairperson, dated February 15th, 2015, one page
I Letter from , dated September 17th, 2014, one page
J Procedural Safeguards, effective September 1, 2007, 48 pages
K Post Hearing Memo, July 10, 2015, 19pp
DEPARTMENT OF EDUCATION
1 IESP, dated December 2nd, 2014,[9] pages
2 Notice of IEP Meeting, dated November 13th, 2014, three pages
3 CSE Minutes, dated December 2nd, 2014, four pages
4 Classroom Observation, dated October 3rd, 2014, one page
5 Parent Request for Evaluation, dated September 3rd, 2014, one page
6 Consent for Evaluation, dated September 22nd, 2014, one page
7 , dated July 7th and 21st, 2014, ten pages
10 Receipt for Procedural Safeguard Notice, dated December 2nd, 2014, one page
12 Event Log, September 4th, 2014 to March 31st, 2015, five pages
13 Public Schools, undated, three pages
14 Due Process Response, dated May 1st, 2015, three pages
15 Memo from , regarding chapter 378, dated September 2007, 22 pages 16 Prior Written Notice, dated December 4th, 2014, four pages
17 Emails, March 5th to March 9th, 2015, 3 pages
18 Post Hearing Memo, 7/10/15, 14pp
Footnotes
[8] , dated October 23rd, 2014, five pages
[9] Vocational Interview, dated September 22nd, 2014, two pages
[11] Authorization Pursuant to , dated September 22nd, 2014, one page