NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
FINDINGS OF FACT AND DECISION
Case Number:
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: July 10, 2015
Actual Record Closed Date: July 18, 2015
Hearing Officer: John Naun, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 10, 2015
Parents
Interpreter (Did Not Appear) — Student
(Via Telephone) — Student
, IHRO
On May 10, 2015 the parent requested a hearing challenging the declassification of her son from . The boy was classified with and has the of a to help him cope with the classroom situation. The school psychologist recently evaluated the boy and determined, based primarily on his perceived academic achievement, that his should be terminated.
The record contains the operative document designated as “Recommendations Upon
Declassification:, (Exh. 2-1) It indicates that the student was declassified in an Individualized Education Program (IEP) meeting of 5/21/15 . At the same time he was designated to receive during the first year after declassification.
Notice of was issued on 5/9/15 (Exh. 3-1)
wherein it recites numerous evaluation documents and reports about the boy’s and performance levels. The document stated that after reviewing the boy’s status and the cited documents, it was determined that the boy no longer meets the eligibility criteria for a designation as a student with an educational disability and therefore no longer requires special education .
The mother and the boy’s testified that the Committee on Special Education (CSE) team leader appeared committed to the conclusion that the boy’s academic progress evidenced that he no longer needed special education . Her mind appeared made up and she was adamant. The mother testified this was an error because the only reason the boy did improve academically was because of the assistance of the . Prior to getting the in the seventh grade and prior to his being designated as an autistic child, the mother claimed the boy floundered and made no progress. The boy’s testified, in refutation of the chairperson’s conclusion, that the chairperson did not spend the day in school with the boy as she, the , did. The stated that if the chairperson spent the school day with the boy she would see that the student , would become , and that he found it very difficult to participate in groups. The noted that the boy would not go to the main lunchroom with the large crowd but rather stayed in a classroom. He also did not like the gym because of his social inhibitions and the crowd. The stated she went to the gym with the boy to encourage him and played sports with the boy and taught him some skills. She noted that his teachers would constantly ask for her help in dealing with the boy. She would talk to him and . On occasion, the noted the boy would . In summary, she supported the mother’s testimony in that she was convinced the boy would regress academically and socially if he was declassified –especially, in particular, if his was removed. She and the mother frequently spoke on the phone regarding the boy’s academic needs, homework deportment, etc. Without the intercession of the the boy would no longer have a or and guidance in the school. The stated that the other teachers at the CSE meeting, not the chair, seemed to agree with her because their comments indicated that they believed that the boy still needed .
As noted, as required in the regulations, the CSE provided support for the student for the year after his declassification. It is interesting to note, however, that he seemed to get more than a simple support in that he was continued in the same co-teaching type class for the year of support where he would continue to get the of a special education teacher as needed and his was to be continued (T.
20). This continuation was more than support and appears to be more like an actual continuation of his and . It would appear the CSE team was not fully convinced or committed to the conclusion that the boy could function without these special education . (To an extent this supports the ’s testimony that the teachers on the CSE team believed the boy still needed special education support.)
The mother pointed to a student progress report from the student’s teacher entered by the DOE as Exhibit 6. The teacher in that report stated that the boy speaks to his classmates and paraprofessionals in “an inappropriate and aggressive manner.” It notes that on occasions, the boy’s manner would almost become physical. The teacher in her report, which was quoted by the mother in her testimony, also noted that the boy would increasingly become stubborn in response to his class work. The teacher opined, in fact, that the boy was in because of his . The report of the boy’s teacher supports the ’s testimony that she is constantly needed to the boy and to mediate his social and academic difficulties in class and with his teachers. The testimony of the mother and the , as well as the teacher’s report, all three of whom had direct experience with the boy’s educational needs, was not contradicted by the testimony of any CSE
witnesses.
Findings of Fact and Decision
The Commissioner of Education has a regulation regarding declassification:
*NYCRR Sect. 200.4(b)(5) (ii) (c) (5)
Determination of needed evaluation data.
As a part of an initial evaluation, if appropriate, and as part of any reevaluation in accordance with section 200.4(b)(4) of this Part, a group that includes the committee on special education, and other qualified professionals, as appropriate, shall review existing evaluation data on the student including evaluations and information provided by the parents of the student, current classroom-based assessments, local or State assessments, classroom-based observations, and observations by teachers and related providers. The group may conduct its review without a meeting. (Emphasis Added)
In the present case, the record suggests that there was insufficient information to accurately assess the student's need for special education and .
There was not sufficient evidence of the boy’s then current needs to make a determination that the student did not need special education or,in particular, the of his (see SRO Appeal No. 04-028).
The record reveals that respondent's CSE did not conduct a classroom observation (34 C.F.R. § 300.534[c][1]; 34 C.F.R. § 300.533[a][1][ii]; see also 34 C.F.R.
§ 300.542[a]), which appears to be in violation of accepted procedures as to determinations of eligibility for special education . (34 C.F.R. § 300.534[c][1]).
The failure to conduct a classroom observation of this boy, in this particular case is substantial and not merely procedural error, because it is specifically critical in that it is his classroom and needs to and socially participate which is the mainstay of the parent claim to justify his need for a . The mother states, as did the who testified, that the boy .
The CSE should have conducted a classroom observation in this particular case. In fact, in order to judge fairly, the observation should have been with the presence of the and without the .
In substance, the IHO recognizes that the failure to conduct a classroom observation is really in most cases a procedural error and as such, by itself, is usually not determinative of the failure to provide a FAPE. But in the context of the un-refuted testimony of the parent and the , including the written comments of his classroom teacher, it appears the failure to conduct an observation of the boy in class had a substantive determinative effect on the outcome of the CSE decision. This is even more so in the context of the apparent adamant position of the CSE chair from the beginning that the boy no longer needed special education due primarily to his academic levels. In cases where such an observation was not made and the CSE decision to declassify was still upheld, unlike herein, the record contained substantial documentation and evidence to support the CSE decision to declassify. (See SRO 04-066 and related decision .SRO 00-036). That is not the case herein.
Therefore, based on the foregoing, the boy’s placement and special education and classification should be restored in the class as well as a . The CSE shall order the boy to be observed in the classroom with this program for with the present and without the ’s presence. The CSE shall also immediately order a evaluation and a . The observations and evaluations shall be immediately provided to the CSE for a new IEP meeting to review the boy’s classification and need for special education and . The parent and the and any other participant the parent chooses shall be free to attend the meeting and contribute. The CSE shall then render its decision having a more complete record. Therefore it is ordered and found:
1. The CSE failed to prove it properly declassified the student based on the data it used.
2. The CSE seemed to have reached a pre conclusion prior to the parent participation.
3. The CSE shall continue or restore the boy’s and in an class (including the ).
4. The CSE shall order an and a be conducted. The CSE shall have the boy observed in class for with the present and an additional without a . The observation shall be conducted by a person other than the classroom teacher and reports shall be made to the CSE.
5. CSE shall convene as soon as possible to consider the classroom observation reports and the evaluations as to and reexamine the issue of the boy’s declassification with full participation of the parent and involved.
The classroom teacher and professional who conducted the classroom observations shall also attend.
6. The CSE shall issue a new determination –either a new IEP or a new declassification decision based on the record before it. So Ordered Dated: August 3, 2015
JOHN NAUN, 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 IEP, 3 pages
B IEP, dated 10/28/13, 13 pages
C , 6/28/14, 7pp
D IEP, dated 9/5/14, 12 pages
DEPARTMENT OF EDUCATION
1 Due Process Complaint, dated 5/20/15, 1 page
2 Recommendations, dated 5/8/15, 2 pages
3 , Notice of Recommendation, dated 5/9/15, 4 pages
4 , Notice of Recommendation ( ) dated 5/9/15, 3 pages
5 Student transcript, dated 5/11/15, 1 page
6 Student progress report, 2 pages
7 Student progress report, speech, dated 4/14/15, 2 pages
8 Eval, dated 2/28/12, 4 pages
9 Psychoed report, dated 4/15/15, 13 pages