Wayne Central School District, Impartial Hearing Decision

THE UNIVERSITY OF THE STATE OF NEW YORK

NEW YORK STATE EDUCATION DEPARTMENT

[], Petitioners,

Hearing Officer: Michael Lazan

v.

WAYNE CENTRAL SCHOOL DISTRICT,

Respondent.

FINDINGS OF FACT AND DECISION

INTRODUCTION

This is a case involving a {} who is not eligible for services.

A Due Process Complaint (“Complaint”) was received by Wayne Central School District (“Wayne” or “District”) pursuant to the Individuals with Disabilities Education Act (“IDEA”) on December 18, 2013 in regard to the Student. This Hearing Officer was appointed to preside over this case on December 19, 2013. .

A response was written by the District denying these contentions on December 27, 2013. The matter did not resolve during the resolution period. The resolution period ended on January 17, 2014.

On January 31, 2014, this Hearing Officer held a prehearing conference. During the call, the parties discussed settlement and then decided to hold a second phone call on February 21, 2014. This call was adjourned at the request of the District and reset for February 27, 2014.

At this time, the parties indicated that they were continuing to negotiate a settlement, and continued to negotiate through April, 2014.

On May 7, 2014, District counsel notified me that the parties were continuing to negotiate and would soon know whether the case would settle or be litigated. On May 15, 2014, parent counsel sent me an email stating that the issues would not be resolved and that a hearing was needed. Another prehearing conference was held on May 22, 2014. (IHO Exh. 1) Hearing dates followed on July 9, 2014; July 10, 2014; August 4, 2014; and August 5, 2014.

Because of the extensiveness of the testimony and issues in this case, because of witness availability, to allow the parties to write briefs (IHO Exhs. 3, 4) and to allow this IHO to write this decision, multiple timelines extensions were granted here. For each such extension, this IHO determined that the application for extension were consistent with the regulatory requirements in 8 NYCRR Sect. 200.5(j)(5)(ii) and (iii). (IHO Exh. 2) The record close date for this case is October 27, 2014. .

ISSUES

The Complaint alleges that the District: 1) failed to evaluate the Student within the timeframes after a referral by the parent in the summer, 2011; 2) failed to properly consider assessments after a referral by the parent in the summer, 2011; 3) failed to allow parent participation after the referral to the CSE in the summer, 2011; 4) failed to conduct a CSE meeting after a referral by the parent in the summer, 2011; 5) failed to classify the Student as a student with a disability as a result of such referral; 6) failed to explain to the parent the reasons failure to conduct a meeting after the referral in the summer, 2011; 7) failed to provide the Student with a {]; 8) failed to properly consider assessments in connection to the CSE meeting of March 7, 2013; 9) failed to develop an IEP for the Student in connection to the CSE meeting of March 7, 2013 with appropriate information, including the Student’s present levels of performance. ^[1]

FINDINGS OF FACT

After considering all the evidence, as well as the arguments of both counsel, this Hearing Officer’s Findings of Fact are as follows: The Student is a {]

He has many average range skills. (Exh. 9) {]

In September, 2011, the Student started second grade. On September 9, 2011, the District sent the parent a consent form for the evaluations. (Exh. 7) The parent consented to an evaluation by the Instructional Support Team (“IST”). (Exhs. 5, P; Tr. @ 271-272) The parent understood this to be consent to any evaluations, including the evaluation by the CSE. (Tr. @ 554-555)

She was then told by {]

The District scheduled a CSE meeting for December 8, 2011. (Exh. 12) The parent cancelled the meeting and asked to reschedule for at least three months later. (Exh. 13) She did not ask to cancel the review process. (Tr. @ 96-97) She was asking for additional time to secure her own evaluations. (Tr. @ 561)

After three months, the parent still did not have the documentation she was going to get. (Tr. @ 562) On May 7, 2012, Ms. {] {]

That summer, the parent arranged for the Student to be assessed by the {}

The IST met on September 14, 2012 to discuss the Student’s start to the year. (Exh. 27) The recent medical reports and evaluations were reviewed. {]

On December 20, 2012, the parent requested an evaluation and a CSE meeting. (Exh. 31) On January 8, 2013, the District received consent for initial evaluations. (Exh. 33) The District had various documents before it in connection to the evaluation, including {}

On March 7, 2013, a CSE meeting was held. The team had before it an {}

The District staff was of the view that special education was not necessary because the Student was doing well with the interventions that had already been provided and that he did not fit any of the classifications. (Tr. @ 65-67, 86) The District’s view was that regular education interventions were sufficient for the student. (Tr. @ 86) The recommendation was that the Student was not eligible. (Exhs. 48, 49) The District felt that there was no documentation to support claims that there were attentional issues. (Tr. @ 65, 83) They recommended that a consultant look at his issues and that a {} be conducted. (Tr. @ 68)

On April 3, 2013, the parent requested an independent therapy assessment at District expense. (Exh. 50) The District provided the parent with a list of independent evaluators. (Tr. @ 126)

An observation was conducted by {}

For the 2013-2014 school year, in fourth grade, the Student continued at He was provided interventions such as {}

The Student was then deemed eligible for Section 504 services. On March 31, 2004, a Section 504 accommodation plan was created for the Student. The plan includes {}

CONCLUSIONS OF LAW

In 2007 the New York State legislature passed a bill that was signed by the Governor which switches the burden from parent to District except for the second criterion in cases for tuition reimbursement or payment. Chapter 583 of the Laws of 2007.

1. 2011 Referral.

The parent contends that, after her referral to the CSE in August, 2011, the District {}

Upon written request by a student's parent, a district must initiate an individual evaluation of a student. Educ. Law Sect. 4401-a(1), (3); 8 NYCRR Sect. 200.4(a)(1)(i), (a)(2)(ii)-(iv), (b); 20 U.S.C. Sect. 1414(a)(1)(B); 34 CFR Sect. 300.301(b). A parent has the right to request a referral of a student to the CSE for evaluation and a determination of eligibility. 34 CFR Sect. 300.301(b) The CSE is required to make its determination of eligibility and provide a program recommendation — or, for a student found to be ineligible for special education, indicate the reasons for such determination—within 60 school days of receipt of the parents' consent to evaluate. 8 NYCRR Sect. 200.4(d), (d)(1).

The parent signed a consent on {}. (Exh. 5) While the consent is for the IST to evaluate the Student, the parent credibly testified that she understood this consent to be for any evaluations, including for the CSE. At this point, {}

I find that the District’s actions here unfairly prevented the parent from getting an evaluation and a CSE meeting. The District made up its mind about the {}

The District is of the view that the parent never consented to the evaluations. However, the parent {} I find that the District’s actions amounted to refusing to provide an evaluation and a CSE meeting, violating 8 NYCRR Sect. 200.4(b)-(d) and 34 CFR Sect. 300.301(b).

2. 2013 Referral/Failure to Consider Assessments/Failure to Assess the Student.

The parent contends that the District failed to consider assessments in connection to the evaluation of the Student and the CSE meeting on March 7, 2013.

As part of an initial evaluation, the IEP Team and other qualified professionals, as appropriate, must review existing evaluation data on the child, including evaluations and information provided by the parents of the child, current classroom-based, local, or State assessments, and classroom-based observations; and observations by teachers and related services providers. 20 U.S.C. Sect. 1414(c )(1)(A)(i); 34 CFR Sect. 300.305(a); 8 NYCRR Sect. 200.4(b)(5)(i).

The District also has a duty to assess students in all areas of suspected disability, including, where appropriate, “social and emotional status,” “academic performance,” “communicative status and motor abilities.” 8 NYCRR Sect. 200.4(b)(6)(vii).

Here, the District did not review or consider a number of evaluations and assessments that were provided by the parent. The team had before it {}

I find that the District violated 20 U.S.C. Sect. 1414(c )(1)(A)(i), 34 CFR Sect. 300.305(a), and 8 NYCRR 200.4(b)(5)(i) when it failed to consider appropriate evaluative data of the Student in connection to the March 7, 2013 Review.

3. Eligibility Determinations.

The parent contends that the Student should have been determined to be eligible for services as a student with {}. The parent also contends that the District should have determined the Student to be eligible at a CSE meeting after the 2011 referral.

The 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. Sect. 1401(3)(A); Educ. Law Sect. 4401(1), (2)(k)). In order to be eligible for special education and related services, a student must not only have a specific physical, mental or emotional condition, but in most of the disability categories enumerated under the IDEA, such condition must adversely affect or impact upon a student's educational performance to the extent that he or she requires special services and programs. 34 CFR Sect. 300.8(a), (c); 8 NYCRR Sect. 200.1(zz).

“ ” is an appropriate classification if a Student has limited strength, vitality or alertness with respect to the educational environment which adversely affects a child's educational performance. This classification requires identification of chronic or acute health problems such as: Asthma;, Attention Deficit Disorder or Attention Deficit Hyperactivity Disorder; Diabetes; Epilepsy; a heart condition; Hemophilia; Lead poisoning; Leukemia; Nephritis; Rheumatic fever; or Sickle cell anemia. 34 C.F.R. Sect. 300.8(c )(9); 8 NYCRR Sect. 200.1(zz)(10).

In determining what “adversely affects” means, each child is different and the effect of each child's particular impairment on his or her educational performance is different. Corchado v. Bd. of Educ. Rochester City Sch. Dist., 86 F. Supp. 2d 168, 176 (W.D.N.Y. 2000). The focus must be on academic performance rather than social development or integration. Maus v. Wappingers Cent. Sch. Dist., 688 F. Supp. 2d 282, 294, 297-98 (S.D.N.Y. 2010).

Moreover, even if the Student meets the criteria for insofar as his educational performance is concerned, the hearing record must show that "by reason thereof" he needed special education and related services within the meaning of the IDEA. J.D. v. Pawlett Sch. Dist., 224 F.3d 60, 66 (2d Cir. 2000); Maus, 688 F. Supp. 2d at 295.

The record does not establish that the CSE had information before it that the Student had been identified as having either {}

As a result, I do not find that the Student had a chronic or acute health problem, as defined in the regulations. I therefore decline the find that the District improperly failed to classify him as eligible for services after the 2011 referral and at the March, 2013 CSE meeting.

4. Request for I.E.E.

The Due Process Complaint references the parent’s request for an therapy assessment and a assessment, and contends that the parent should receive an I.E.E. for these assessments.

Federal and State regulations provide that, subject to certain limitations, a parent has the right to an I.E.E. at public expense if the parent disagrees with an evaluation obtained by the school district. 34 C.F.R. Sect. 300.502(a), (b); 8 NYCRR Sect. 200.5(g)(1). If a parent requests an I.E.E. at public expense, the school district must, without unnecessary delay, ensure that either an I.E.E. is provided at public expense or initiate an impartial hearing to show that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria. 34 C.F.R. Sect. 300.502(b)(2)(i)-(ii); 8 NYCRR Sect. 200.5(g)(1)(iv). If a school district's evaluation is appropriate, a parent may not obtain an IEE at public expense. 34 C.F.R. Sect. 300.502(b)(3); 8 NYCRR 200.5(g)(1)(v); DeMerchant v. Springfield Sch. Dist., 2007 WL 2572357, at *6 (D. Vt. Sept. 4, 2007). However, if the parent shows that the District evaluation is inappropriate, or if the District unnecessarily delays in seeking an impartial hearing to contest a parent's request for an I.E.E., the IHO may order that the District provide the requested I.E.E. at public expense. Pajaro Valley Unified Sch. Dist. v. J.S., 2006 WL 3734289 (N.D. Cal. Dec. 15, 2006) (delay in requesting an impartial hearing resulted in IHO order to fund I.E.E.).

Here, the parties do not dispute that the District did not initiate an impartial hearing to contest the parent’s request for an I.E.E. Still, caselaw indicates that a parent initiated Complaint may result in an award of an I.E.E. See, e.g., Application of the ____________ for review of a determination of a hearing officer relating to the provision of educational services to a student with a disability, Appeal No. 12-218 (2014). As a result, I will go on to determine the appropriateness of the request for an I.E.E. The parent did not identify a specific evaluation that she was contesting in this respect. Under the circumstances, I will deny the parent’s request for a evaluation.

REMEDY

As a r emedy, the parent asserts that appropriate relief in this matter is to order that the student is eligible for services as a student with {}.

I have found that the District failed to evaluate the Student, failed to conduct a CSE meeting, and then failed to consider parental assessments to determine whether the Student should be determined to be eligible for services. However, I have not found that the Distrct should have found the Student eligible for services because the District {]t.

The record before me does contain such documentation. However, the record does not necessary connect the bulk of the Student’s behaviors in the classroom to {]. Recent caselaw suggests that a more direct showing is necessary between {}and the need for interventions within the domain of special education. Application of a Student Suspected of Having a Disability, Appeal No. 13-325 (2014)(student diagnosed with ADD; per BASC-2, was at-risk in terms of hyperactivity and eight other areas, deemed clinically significant in terms of interpersonal relations, and had been homebound because of extreme anxiety and depression; deemed not eligible); Application of the ____________ for Review of a Determination of a Hearing Officer relating to the Provision of Educational Services to a Student Suspected of Having a Disability, Appeal No. 11-152 (2012)(student with ADHD had executive functioning issues and weaknesses in attention, but needs could be met in the general education setting; deemed not eligible); Application of a Student with a Disability, Appeal No. 11-115 (2011)(student with ADHD would call out in class, had difficulty understanding social nuances, did not take care to complete assignments, had difficulty with focus, and poor organization; deemed not eligible); Application of a Student Suspected of Having a Disability, Appeal No. 11-021 (2011)(student required outlining, graphic organizing, scaffolding, small group instruction, opportunities to ask questions in order to prepare for and frame what was coming next to help the student cope with his anxiety, use of an agenda and checklists to structure his time, periodic refocusing, and reassurance; SRO found that a regular education teacher would have the skills to utilize these strategies and that many students in the general education population need some or all of these strategies at some point; deemed not eligible).

I will note in this connection that the Student did well on his {}.

Where, as here, an impartial hearing officer finds that the CSE did not have before it sufficient information to make a determination regarding a student's eligibility for special education programs and services, and the impartial hearing officer did not believe that there was sufficient information in the hearing record for him to make such a determination, the proper remedy is to remand the matter to the CSE. Application of the Board of Education ______________________ for review of a determination of a hearing officer relating to the provision of educational services to a student with a disability, Appeal No. 09-087 (2009).

ORDER

As a result of the foregoing, I hereby order:

1. The Student shall receive an independent therapy assessment within thirty days;

2. Such assessment shall include {}test;

3. The CSE will reconvene within fifteen days of the transmission of the report of the therapist to determine whether the Student is eligible for services. The CSE shall consider all assessments and evaluations in this record and shall consider whether the Student is eligible in all of the thirteen categories of eligibility under the IDEA.

Dated: Brooklyn, N.Y.

November 11, 2014

Michael Lazan

MICHAEL LAZAN IHO

APPEALS NOTICE

There is a right to appeal this decision to the New York State Review Officer in accordance with 8 N.Y.C.R.R. Sect. 200.5(k) of the Regulations of the Commissioner of Education.

Evidence District 1. Due Process Complaint Notice, 12/17/13, 10 pp. 2. Response, 12/27/13, 2 pp. 3. Letter from parent, 8/10/10, 1 page. 4. Consent to Conduct an Evaluation Form, received 8/11/11, 1 page. 5. Evaluation Consent Form, 9/6/11, 1 page. 6. Health Appraisal Form, 9/8/11, 1 page. 7. PWN for Referral for Evaluation, 9/9/11, 1 page. 8. Evaluation, 9/11, 9 pages. 9. IST-Behavior Meeting Notes, 9/23/11 and 5/9/12, 4 pp. 10. Behavioral Screening, 10/11 and 11/11, 3 pp. 11. Therapy Evaluation, 11/14/11, 6 pp. 12. CSE Meeting Notice, 11/21/11, 5 pp. 13. Email from parent, 12/6/11, 1 page. 14. Emails between parent and 1/2/12-1/4/12, 5 pp. 15. Therapy Screening, 1/23/12 1 page. 16. Teacher Questionnaires, 3/13/12, 20 pp. 17. Kirsch Center Questionnaire, 4/4/12, 5 pp. 18. Letter to 5/7/12, 2 pp. 19. Benchmarks, 6/12, 1 page. 20. Emails between parent and 2 pp. 21. Letter from parent, 1 page. 22. Report Card, 2011-2012, 4 pp. 23. Patient Care Plan, 7/17/12, 2 pages. 24. Report from 8/8/12, 6 pp. 25. Emails between parent and staff, 6/27/12-9/4/12, 6 pp. 26. Letter from 9/10/12, 1 page. 27. IST Notes, 9/14/12, 4 pp. 28. Email from , 9/26/12, 2 pp. 29. Emails between parent and , 10/4/12-10/5/12, 1 page. 30. Behavioral Screening, 10/12, 4 pp. 31. Letter from parent, 12/20/12, 1 page. 32. Prior Written Notice, 12/21/12, 3 pp. 33. Consent for Initial Evaluation, received 1/8/13, 1 page. 34. Social/Medical History, received 1/8/13, 8 pp. 35. Fax from evaluation, 9/27/12, 12/21/12, 14 pp. 36. Therapy Evaluation, 1/14/13, 3 pp. 37. Classroom Observation, 1/28/13, 2 pp. 38. Evaluation, 1/13, 11 pp. 39. Email between and parent, 2/5/13, 1 page. 40. Emails, 2/6/13-2/11/13, 4 pp. 41. FBA, 2/13, 5 pp. 42. BIP, 2/13, 2 pp. 43. Emails between and parent, 2/12/13, 1 page. 44. Behavior Plan and Chart, 2/25/13, 4 pp. 45. CSE Meeting Notice, 2/19/13, 2 pp. 46. Parent Invitation Response Form, received 2/28/13, 1 page. 47. CSE Meeting Information, 3/7/13, 6 pp. 48. PWN/Ineligibility, 3/7/13, 6 pp. 49. CSE Ineligibility Document, 3/7/13, 7 pp. 50. Email from parent, 4/3/13, 1 page. 51. Teacher Questionnaire, 4/18/13, 11 pp. 52. Emails between and parent, 3/20/13-4/23/13, 3 pp. 53. Consultation, 4/23/13, 5 pp. 54. Emails between and parent, 5/20/13, 2 pp. 55. Third Grade Benchmarks, 2012-2013, 1 page. 56. Report Card, 2012-2013, 4 pp. 57. Emails between parent and , 10/8/13-10/11/13, 4 pp. 58. Current Interventions and Benchmarks, 12/13, 36 pp. 59. Emails from parent to , 3/17/14, 6 pp. 60. Emails between parent and , 3/31/14-4/2/14, 3 pp. 61. Report Card, 2013-2014, 2 pp. 62. STAR testing reports, 6/25/14, 2 pp. 63. Fourth Grade Benchmarks, 2013-2014, 1 page. Parent C. Section 504 Accommodation Plan, 3/31/14, 2 pp. D. Section 504 Committee Recommendation and Consent, 3/31/14, 2 pp. E. Section 504 Committee Meeting Information, 3/31/14, 2 pp. F. Request for Section 504 Meeting, 3/19/14, 1 page. G. Request for Section 504 Meeting, 3/17/14, 1 page. H. Letter from 2/10/14, 1 page. I. Letter from 3/12/13, 1 page. P. Email from parent, 9/26/11, 1 page. X. Behavior Recommendations of 10/22/12, 2 pp.

Y. Screening, 9/20/12, 2 pp. Z. Therapy Assessment, 8/30/12, 4 pp. AA. and Pediatric Report, 7/17/12, 2 pp. CC. Pediatric History Form and Documents, 5/4/12, 5 pp. HH. Results of Observational Survey, undated, 1 page. LL. Report Card, 2009-2010, 4 pp. MM. Mathematics Parent Report, 2012-2013, 2 pp. NN. English Language Arts Parent Report, 2012-2013, 2 pp. OO. Daily Behavior Charts, 2013-2014, 49 pp. PP. Behavior Plan Report, 1/13-4/13, 2 pp. QQ. Discipline Alert Log Entry, 2/11/13, 1 page. TT. Work Samples, undated, 3 pp. UU. Attendance Records, 2009-2012, 6 pp. VV. Health Records, 2009-2014, 22 pp. WW. Parent/School Correspondence, 5/12-6/14, 55 pp. XX. Letter from undated, 1 page. YY. Letter to parent, 9/27/13, 1 page. ZZ. Benchmark data, 2012-2013, 1 page. AAA. Therapy Service Summary, 7/1/14, 3 pp. IHO 1. PHC Summary, 2 pp. 2. Timelines Notices, 9 pp. 3. Brief of Parent, 10/9/14, 16 pp. 4. Brief of District, 10/9/14, 11 pp.

Footnotes

[1] The Complaint also appears to reference claims relating to an April 23, 2013 CSE meeting. There was no testimony regarding this meeting, and no argument from either side regarding this meeting. Under the circumstances, I find this contention to be without any support in the record, and must be found to be without merit. 3