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FINDINGS OF FACT AND DECISION
Case Number: 160503
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: August 30, 2016
October 17, 2016
Actual Record Closed Date: December 19, 2016
Hearing Officer: James P. Walsh, Esq.
NAMES AND TITLES OF PERSON WHO APPEARED AUGUST 30, 2016
Parent
, Attorneys for Parent
Mother of Student Parent
Parent
(by phone)
District and New York City Department of DOE
Education Representative
NAMES AND TITLES OF PERSON WHO APPEARED OCTOBER 17, 2016
Parent
, Attorneys for Parent
Mother of Student Parent
Parent
(by phone)
District and New York City Department of DOE
Education Representative
The Matter of , (hereinafter referred to as “Student”), came before me for determination, in accordance with the provisions of the Individuals with Disabilities Education Act, 20 U.S.C. §1412 et seq. on August 30, 2015 and October 17, 2016. The undersigned had been appointed by the New York City Department of Education’s Impartial Hearing Office as the Impartial Hearing Officer authorized to preside over this matter, after the recusal by one or more Impartial Hearing Officers, by notice dated June 21, 2016. Upon the conclusion of proceedings on October 17, 2016, the representatives for the respective parties requested the opportunity to submit Post-Hearings briefs for my consideration. Those requests were granted so long as briefs were submitted no later than
November 18, 2016. However, due to a delay in Parent’s counsel receiving the Transcript of the final day of hearing, that submission date was thereafter advanced to December 16, 2016. Each representative timely submitted a Post-Hearing brief and each has been reviewed and considered. The Actual Record Close Date was December 19, 2016.
The proceeding was initiated by correspondence filed on behalf of Parent by the , dated May 13, 2016 and received by the New York City Department of Education’s Impartial Hearing Office on that date, requesting an Impartial Hearing. Parent’s Due Process Complaint Notice sets out a brief description of Student’s program in 2010, stating that Student had been referred by Student’s classroom teacher to District’s Committee on Special Education (C.S.E.), which, after conducting required evaluations, found Student ineligible for special education services. The
Complaint (Exhibit 1) also provides brief statements regarding Student’s difficulties during the 2014-2015 school year before reaching the essence of Parent’s complaint - that District failed to provide appropriate interventions pursuant to the provisions of Section 504 of the Rehabilitation Act of 1975 to address and to refer Student to District’s Committee on Special Education (C.S.E.) to conduct a full battery of tests and to convene a Committee meeting to find Student eligible to receive special education and related services and develop an appropriate Individualized Education Program to address Student’s needs. Parent also seeks to have District ordered to provide Student with . Finally, Parent seeks an award of compensatory services for District’s failure to provide Student with a free, appropriate public education for the entirety of the 2015-2016 school year.
Student is presently , having been born on .
However, at the commencement of the 2015-2016 school year, Student was and . The
Record contains little information regarding Student’s academic or cognitive abilities during the period identified by Parent in her Due Process Complaint. Statements contained in Parent’s unverified Due Process Complaint regarding are not appropriate proof. Parent testified that Student (T.R. 143). Parent also described Student as (T.R.108).
I note that, while Parent’s Complaint (Exhibit 1) states that Student is diagnosed with and , I find no evident in the Record before me to substantiate such diagnosis of until June of 2016, when such appears in the Evaluation Report of (Exhibit G), prepared in connection with Student’s evaluations by District’s C.S.E., at the close of the 2015-2016 school year. However, a number of witnesses referred to Student’s as an explanation of (T.R.30; T.R. 190)
From a review of Parent’s testimony, it is clear that Parent primarily sought to challenge District’s determination, dated November 13, 2015, which denied Parent’s request, made pursuant to Section 504 of the Rehabilitation Act of 1975, for the provision of .
Indeed, District’s sole witness in this proceeding was , the for the . It was Dr. who first reviewed and rejected the application made by Student’s for for Student for the 2015-2016 school year, dated June 16, 2015 (Exhibit A), and it was Dr. who determined Parent’s appeal from that rejection and issued the Notice of Eligibility, dated November 13, 2015 which found Student not eligible for accommodations under Section 504 (Exhibit E). Dr.
explained that, in his opinion, a student of should be able to and . Dr. also opined that it was (T.R. 13-14).
Student’s Dr. , testified regarding her familiarity with Student and over a period of years. Dr. attributed to , and (T.R. 189-190). However, I find that testimony from Parent established that only during his first year at the – the 2015-2016 school year (T.R120) - after the date by which Parent’s application for a under Section 504 had been determined.
However, as noted previously, Parent in this proceeding, seeks, among other things, that I order the District to provide in compliance with his doctors’ recommendation. However, it is my finding that such issue is now moot. The
2015-2016 school year is now completed. The parties have agreed that, since the commencement of these proceedings, District’s Committee on Special Education has convened and found Student eligible to receive special education and related services, including the provision of (T.R.182) (Exhibit 18). Thus, there is no purpose, even if I should find Student in need of , to order such, as the District has already done so.
Similarly, Parent’s request that District’s Committee should be ordered to conduct a full battery of evaluations and develop an appropriate Individualized Education Program for Student, as was set out in Parent’s Due Process Complaint (Exhibit 1) is also moot, as District’s C.S.E. has, indeed, already attended to such.
Parent’s remaining issue is the allegation that during the 2015-2015 school year because of the denial of FAPE, such that Student requires and related services (Exhibit 1). Of course, the legitimacy of such allegation is dependent upon the earlier allegation by Parent that District failed to provide Student with appropriate special education during the 2015-2016 school year (Exhibit 1). I reject District Representative ’s contention that the issue of whether Student had been denied FAPE during the 2015-2016 school year was not yet ripe for review, as District’s Committee on Special; Education was in the process of determining Student’s eligibility for special education and until the Committee had done so, it was premature to order any relief as requested by Parent (T.R. 19). I note that each of the exhibits offered into evidence by District was dated June of 2016 or later and, while related to the information which had been gathered by District’s C.S.E. in order to review Student’s eligibility of special education, such would have relevance to Student’s program for the 2016-2017 school year. Parent has the right to raise her contention that District failed to provide Student with a free, appropriate public education during the 2015-2016 school year. Clearly, Parent’s allegation is that Student should have been determined by District to be in need of special education services and to have been provided with a special education program during the entirety of the 2015-2016 school year – and was not. Thus, the issue is whether District had failed in its Child-Find obligation to Student.
As noted by the State Review Officer in determining In the Matter of a Student with a Disability, Appeal No. 11-092 and 11-094:
The purpose of the "child find" provisions of the IDEA are to identify, locate, and evaluate students who are suspected of being a student with a disability and thereby may be in need of special education and related services, but for whom no determination of eligibility as a student with a disability 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]; 34 C.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 disability . . . 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 Disability, Appeal No. 10-009; Application of a Student Suspected of Having a Disability, Appeal No. 09-132; Application of a Child with a Disability, Appeal No. 07-062; Application of a Child Suspected of Having a Disability, Appeal No. 05-090; Application of a Child with a Disability, Appeal No. 04-054; Application of a Child Suspected of Having a Disability, Appeal No. 01-082; Application of a Child with a Disability, Appeal No. 93-41). 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 Child Suspected of Having a Disability, Appeal No. 05-127; Application of a Child Suspected of Having a Disability, Appeal No. 05-040; Application of a Child with a Disability, Appeal No. 03-043; Application of a Child Suspected of Having a Disability, Appeal No. 01-082). A district's child find duty is triggered when there is "reason to suspect a disability and reason to suspect that special education services may be needed to address that disability" (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]; see Application of a Child Suspected of Having a Disability, Appeal No. 06-092; Application of a Child Suspected of Having a Disability, Appeal No. 06-087; Application of a Child Suspected of Having a Disability, Appeal No. 05-127; Application of a Child Suspected of Having a Disability, Appeal No. 05-040; Application of a Child Suspected of Having a Disability, Appeal No. 04-087; Application of the Bd. of Educ., Appeal No. 04-037; Application of a Child with a Disability, Appeal No. 03-043; Application of a Child with a Disability, Appeal No. 02-092; Application of a Child Suspected of Having a Disability, Appeal No. 01-082). To determine that a child find violation has occurred, school officials must have overlooked clear signs of disability 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]). 26 States are encouraged to develop "effective teaching strategies and positive behavioral interventions to prevent over-identification and to assist students without an automatic default to special education" (Los Angeles Unified Sch. Dist. v. D.L., 548 F.Supp.2d 815, 819 [C.D.Cal. 2008] referencing 20 U.S.C. § 1400[c][5]).
Thus, in order to find that District failed in its Child-Find obligation to Student, it is necessary that evidence establishes that school officials overlooked clear signs of disability and, thereafter, to have been negligent in failing to order testing. I find no such evidence in the proceeding before me that would have required District to refer Student to its Committee on Special Education, find Student in need of special Education services, and provide those services. In order to find that Student was denied a free, appropriate public education during the 2015-2016 school year, it would be necessary I determine that District’s C.S.E. failed in preparing a special education program for Student at the end of Student’s program. But the meager evidence on at the close of Student’s 2014-2015 school year is much to the contrary – and was provided by Parent. Parent testified that Student had begun the school year with , but that once , Student started doing “ ” (T.R. 114)
and that, by the end of his , and had received (T.R.114).
It is my finding and determination that there were no clear signs of any disability that mandated that District evaluate Student for special education services at the beginning of the 2015-2016 school year. It was reported that Student during the 2015-2016 school year and was due to . That Student would appear to be a direct result of and, thus, not available for instruction.
I note Parent’s Witness testified as a representative of the . Witness provided information regarding various tests administered to Student by the , as well as the results thereof.
However, I also note that such evaluations were conducted well after the close of the 2015-2016 school year and, indeed, after the filing of Parent’s Due Process Complaint. I find that such have little relevance to my determination regarding District’s Child-Find obligation of September of 2015 or thereafter. As noted, District’s C.S.E. has since acted, so that, as of now, Student is being provided with special education services. However, such action by District’s C.S.E. in no way represents evidence that its C.S.E. should have taken any such action at the commencement of the 2015-2016 school year or to have provided Student with any special education services during that school year
Thus, it is my further finding and determination that District did not fail in its
Child-Find obligation to Student. Having determined such, it is my further finding and determination that Student is not entitled to receive any compensatory services, as there is nothing for which District must compensate.
ORDER
Based on the above review, it is
HEREBY ORDERED that Parent’s Due Process complaint be, and the same hereby is,
DISMISSED.
Dated: January 4, 2017
JAMES P. WALSH, ESQ.
Impartial Hearing Officer
JPW:
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 RECORD AUGUST 30, 2016
No.: # of Pages Description: Offered by:
A 4 Parent
, by , dated 6-16-15 (1);
, by , dated
6-16-15 (1);
, by Parent, dated 6-11-15 (1);
, by , dated
6-16-15 (1)
B 2 Request for Section 504 Accommodations - Parent by Parent, undated
C 1 , dated Parent
10-6-15
D 2 , dated Parent
10-19-15
E 1 Notice of Eligibility Determination, dated Parent
11-13-15
F 1 Student’s Report Card for First Marking Parent
Period, dated 11-9-15
G 11 Results of Evaluation of Student, Parent
dated 6-22-16
H 1 Meeting Notice, dated 6-23-16, Committee on Parent
Special Education
I 1 Letter To Whom It May Concern, by Parent
, dated 6-23-16
J 11 Results of Testing Conducted by Parent
, dated 8-8-16
K 10 Parent’s Due Process Complaint Notice, dated Parent
5-13-16
1 10 Parent’s Due Process Complaint Notice, dated DOE
5-13-16
2 4 District’s Due Process Response, dated 5-20-16 DOE
3 Not Received
4 3 Meeting Notice, dated 6-23-16, Committee on DOE
Special Education
5 6 Results of Evaluation of Student, DOE
dated 6-22-16, by
6 1 Report of , by DOE
, dated 6-13-16
7 Not Received
8 3 Evaluation, dated 6-3-16, by DOE
9 2 DOE
, dated 6-3-16
10 1 Consent for Use of Electronic Mail, dated DOE
6-3-16
11 2 Authorization For release of Health Information DOE
Pursuant to HIPPA, dated 6-3-16
12 1 Consent to Initial Evaluation, dated 6-3-16 DOE
13 1 Assessment Planning, dated 6-3-16 DOE
14 1 Notice of , dated 5-27-16 DOE
15 1 Prior Written Notice of Initial Evaluation, DOE
dated 5-26-16
16 1 - DOE
– otherwise blank and unsigned
17 Not Received
DOCUMENTATION ENTERED INTO RECORD OCTOBER 17, 2016
No.: # of Pages Description: Offered
18 17 Student’s I.E.P. as created by District’s DOE
C.S.E. on 9-22-16
OTHER DOCUMENTATION ENTERED INTO RECORD
No.: # of Pages Description: Offered By
I 30 Petitioner’s Closing Brief, dated 12-16-16 IHO
II 6 NYC Department of Education Closing Brief and IHO
Memorandum of Law, dated 12-16-16