Impartial Hearing Decision

Case #503863

CARMEL CENTRAL SGHOOL DISTRICT

STATE OF NEW YORK : COUNTY OF PUTNAM

IN THE MATTER OF THE IMPARTIAL HEARING BY J oi. FOR

REPRESENTED BY QR ADvocaTeE

PETITIONER,

AGAINST

CARMEL CENTRAL SCHOOL DISTRICT,

REPRESENTED BY MICHAEL LAMBERT, ESQ.

GARRETT SILVEIRA, ESQ.

SHAW, PERELSON, MAY& LAMBERT, LLP

RESPONDENT,

BEFORE

GEORGE KANDILAKIS

IMPARTIAL HEARING OFFICER

NOVEMBER

4,

2017

Factual Background

tt 503862 In the matter of a child with a disability JP. by her Parents samt: I-& HI of the determination by the CSE for an Independent Educational Evaluation. ThéDue Process Complaint was filed on May 16, 2017. Aresolution session was held’on June 8, 2017. The child is currently attending the 9th grade at the local District’s high school: The child’s Individual Educational Program [IEP] was developed on May 5, 2017 by the Committee on Special Education [CSE] on May 5, 2017. The IEP indicates that she is classified as Learning Disabled and in a coteaching program for English, mathematics, science and social studies. She also receives resource room daily for 39 minutes. Modifications and accommodations listed on the IEP included preferential seating, flexible setting, breaks when needed and checks for understanding. The IEP is not an issue at this time. The evaluations noted on the IEP included; social history [3/20/17]; WIAT III [7/6/16]; psychological evaluation [7/1/16]; IEP progress on goals report [2/23/17]; Gray Oral Reading test [4/9/15] and District Wide Assessments [1/25/13, 1/24/13, 6/15/12, 6/15/12, 3/7/12 & 3/7/12] Comments on the IEP indicated that the Petitioner requested a neuropsychological evaluation and a GORT V assessment. The Petitioner’s position is that the child’s learning disability was not specified on the IEP and that the IEP does not address the child’s difficulties in English, Language Arts, science and social studies. The Petitioner further contends that the District did not employ scientific research based interventions to address the child’s learning disability. In addition the Due Process Complaint requested the child’ receive digital textbooks, access to a computer curing the day, algebra formula books for 9th grade, Orton Gillingham software for 9th grade and a neuropsychological evaluation with QEEG brain mapping to be done by Dr. Susan Crum, who is located in Sebring, Florida. Along with the prepayment for the evaluation, the Petitioner is requesting travel expenses for the child to Florida. The results of Dr. Crum’s evaluation and her recommendations would be incorporated in the revised IEP by the CSE in some future date. The results of the prehearing conference was held on June 28, 2017, at which time the District reiterated its decision to grant the Petitioner’s request for an independent neuropsychological. The approval for an IEE did not include the QEEG brain mapping examination. The District claimed that a QEEG is a medical examination and not part of an educational evaluation. The granting of the neuropsychological evaluation was contingent on the qualifications of the evaluator, namely having a New York State license or certification, located in the geographical vicinity and costs would be within the range consistent with the typical neuropathological conducted in the community [$2500-$3500]. Another condition were that the evaluator would not be part of the District's evaluative team. The Petitioner would have the responsibility to select their evaluator from an approved list with the required qualifications.

Regulatory Procedures

CR Part 200.5 [g] [i] indicates where parent requests and IEE because the parent disagrees with the evaluation obtained by the school district, [i] the school district shall provide the parent with information about where an IEE may be obtained and the school district's criteria applicable for an IEE. [ii] the criteria under which the evaluation is obtained, including the location of the evaluation and the qualifications of the examiner, shall be the same as the criteria which the school district uses when it initiates an evaluation. to the extent those criteria are consistent withe parent's right to an independent educational evaluation. A school district may not impose additional conditions or timelines related to obtaining an independent educational evaluation at public expense. [iii] if a parent requests an independent educational evaluation at public expense, the school district may ask for the parent’s retsina why he or she objects to the public evaluation. [a] the explanation by the parent in subparagraph [iii] of this paragraph may not be required and the school district may not unreasonably delay either providing the independent evaluation at public expense or filing a due process complaint notice to request a hearing to defend the public evaluation. [iv] if a parent request an independent educational evaluation at public expense, the school district must, without unnecessary delay, either ensure and independent educational evaluation is provided at public expense or file a due process complaint notice to request a hearing to show that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria, the parent has the right to an independent educational evaluation, but not a public expense. [vi] if the parent obtains an independent educational evaluation at public expense or shares with the school district an evaluation obtained at private expense, the results of the evaluation: [a] must be considered by the school district, if it meets the school district's criteria, in any decisions made with respect to the provision of a free appropriate public education for the student and [b] may be presented by any party as evidence at an impartial hearing of the student. In the Due Process Complaint item G, a neuropsychological evaluation with a QEEG brain mapping [procedure] [is] to “find out our daughter’s actual 1Q”. By definition an electroencephalography [EEG] is the measurement of electrical patterns at the surface of the scalp which reflect cortical activity and are commonly referred as “brain waves”. A Quantitative EEG [QEEG] is the analysis of the digital EEG [brain mapping] According to its web site Brain Science Interactive [BSI] provides statistical data and maps, in-depth analysis, comparative normative data bases of EEGs. This deep comprehension “is needed to provide the referring treatment team a complete analysis. BSI “is the EEG experts expert, offering consultation on different cases from staff specials and experts. [They] provide clinicians an understanding of cases from staff specialist and experts. [They] provide clinicians an understanding of EEG/ERP associated with various neurological condition and how they relate to brain performance and behavior. An explanation of everyday function and behavior”

Decision

The issues presented in the prehearing conference [6/28/17], in the Due Process Complaint [Complaint] and at the hearing on October 4, 2017 were: [1] the accommodations of digital text books, access to a computer during the day, algebra formula book for 9th grade and Orton Gillingham computer software. [2] the neuropsychological evaluation [3] the QEEG brain mapping procedure During the course of the hearing, it became apparent that those requests in item one [1] had not been addressed by the CSE. During the discussion, I directed the District to reconvene a CSE to address those issues raised at the hearing. The District agreed to schedule a CSE meeting. [T pp 61-65] With regards to item two [2], the District had granted the Petitioner’s request for and independent neuropsychological evaluation providing that the individual meets all the criteria established by the District. [T p 8] The Petition states in the Complaint that the District did not provide a prior written notice after their request for an IEE at the CSE meetings of February 27, 2017 and May 5, 2017. No evidence was provided by the Petitioner regarding the discussion between the parties at the February 27, 2017 CSE meeting so | cannot respond to that part of the Complaint. Testimony by Mr. Louis Valesey, CSE Chairperson, testified that that he attempted to schedule a CSE meeting when he became aware of the Petitioner’s request for “some testing”. He attempted to schedule a CSE meeting in March, but due to the Parents unavailability, it was scheduled for May, 2017. At the meeting, Mr. Valesey offered to have the District conduct some evaluation, though not a neuropsychological evaluation. The Petitioner did not accept the Districts offer and within a few days filed a Complaint. Mr. Valesey conducted the resolution session on June 8, 2017 at which time the District agreed to pay for an IEE neuropsychological evaluation. No evaluation has been received by the District. [T pp 71-74] The Petitioner contends that an IEP team did not participate in the resolution session. The Regulations process requires that a meeting with the parents and the relevant member or members of the CSE, as determined by the school district and the parent, who have specific knowledge of the facts identified in the complaint, which shall include a representative of the school district who has decision-making authority on behalf of the school district. [CR Part 200.5 [j] [2] ] Mr. Valesey, as the CSE chairperson had met the requirements of the Regulations and no evidence was presented that the Petitioner had requested additional members to be present at the resolution session. The Petitioner contends that the District did not follow procedures to defend their evaluations. The District had already granted to the Petitioner, the neuropsychological evaluation and need not defend its evaluations at this time in the proceedings. The appropriate time for the defense of its evaluations is premature and would be after the receipt of the IEE and was reviewed by the CSE. [Application of a Student with a Disability, Appeal No.04-082, Application of a Student with a Disability, Appeal No. 08-039] “If a parent requests and IEE because the parent disagrees with the evaluation obtained by the school district: [vi] if a parent obtains an IEE at public expense............the results of the evaluation: [a] must be considered by the school district, if it meets the school district’s criteria. [CR Part 200.5 [g]] As to the request for a neuropsychological evaluation with QEEG brain mapping, I will address the two matters separately. Dr. Susan Crum, psychologist, was selected by the Petitioner as the Child’s evaluator. She testified that she was licensed in the State of New York, but had no direct knowledge of the Child either by evaluating her, examining her records or any previously conducted evaluations. [T pp 101-102, 103-104, 112] She testified that some neuropsychological evaluations can obtain information useful for remediation and accommodations. [T p 113] If she were to conduct the evaluation, she would obtain the Child’s history, review previous evaluations, current presenting complaints, select the subtests, integrating all the different “measures” and make recommendations. [Tp 115] She further testified that a neuropsychological evaluation can in many circumstances identify with accuracy an IQ. An IQ is a measure of cognitive ability, by using the results of subtests scores. [T pp 110, 128, 133, 135, 149] I can only conclude from Dr. Crum’s testimony that a standard neuropsychological can provide the Petitioner what she seeks and that is to determine the child’s IQ and the resulting recommendations for an IEP revision. Dr. Crum’s residence is in Sebring, Florida. Her fee for conducting the evaluation is within the Districts policy range of reimbursement fees [$2500-$3500], that would not be an issue. Since we did not receive her NYS license at the hearing, that would have to be presented to the District prior to her conducting the evaluation. The Petitioner also seeks payment for the evaluations in advance of their completion. A district must “ensure an IEE is provided at public expense”. That assurance has been given by the District, so there is no obligation for a District to prepay for an IEE requested by a Parent. [D-3] [Application of a Student with a disability, Appeal No. 04-083] The Petitioner seeks as part of the neuropsychological evaluation a QEEG brain mapping examination. Dr. Crum testified that she was not a physician and she conducted the examination in the same manner as a normal EEG except that the data is computerized and that permits [one] to do statistical analysis and compare the data to the databases. She continued to testify that when the data are incorporated with the neuropsychological evaluation, you rule out malingering or a traumatic brain injury. QEEG does not identify an specific disability. It will identify specific regions of the brain that are not working and the function of that part of the brain. “QEEG and neuropsychological complement each other” . She also testified that it was possible to achieve a cognitive score without QEEG. [Tp 104-105, 110-111, 149] Dr. Crum referred in her testimony to using Dr. Thatcher’s database. No evidence was provided as to who this individual was or the validity and reliability of his database. When I asked about the size of the database, she was unable to provide me with the information. [T p 149] | concur with the District that the Petitioner has an obligation to have a neuropsychological evaluation conducted as outlined in the District’s Policies and in the Commissioner’s Regulations. The request for the additional examination of a QEEG is denied. The request for transportation for the Child to Florida to conduct the evaluation is also denied, since a neuropsychological evaluation is available in the community the Child resides. Appeal to a State review officer of the State Education Department. [1] Any party aggrieved by the findings of fact and the decisions of an impartial hearing officer rendered in accordance with subdivision [j] of this section may appeal to a State review officer of the State Education Department. Such a review shall be initiated and conducted in accordance with the provisions of Part 279 of this Title. CR Part 200.5 [k]

Geant Kandilakis

Impar earing Officer

November

4,

2017

©O7NOH&ON=aooeaoe@eBGORSS Witness Direct Cross Redirect Recross 197 N DEX LOUIS VALESEY 67 74 = - OR.SUSAN CRUM 100 119 138 144 PLP. 1520 -- -- -- A.M.P. 173 182 185 186 5 EXHIBIT School District 1 IEP OF MAY STH, 2017, 11 PAGES -- 37 2 DUE PROCESS COMPLAINT RECEIVED BY DISTRICT ON 5/24/2017, 17 PAGES -- 38 3 ANSWER TO THE DUE PROCESS COMPLAINT ON 7/8/17, TEN PAGES -- 38 a ee ee Cathenne Kunkel, RMR-CRR 50