New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 160608

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: July 8, 2016

August 4, 2016

October 5, 2016

November 30, 2016

January 10, 2017

Actual Record Closed Date: February 23, 2017

Hearing Officer: Susan M. Barbour, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 8, 20161

Advocate (via telephone) — Student

Parent (via telephone) — Student

No appearance — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 4, 2016

Advocate (via telephone) — Student

Impartial Hearing Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 5, 2016

Advocate — Student

Parents

Impartial Hearing Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 30, 2016

Advocate — Student

Impartial Hearing Representative — DOE

(via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 10, 2017

On July 8, 2016, a telephone prehearing conference was conducted.

For the Student:

, Advocate

, Parent (via telephone)

For the Department of Education:

, Impartial Hearing Representative

, (via telephone)

INTRODUCTION

On May 31, 2016, I was appointed as the Impartial Hearing Officer (IHO) to conduct a hearing pursuant to the Individual with Disabilities in Education Act (IDEA), 20 United States Code, Section 1415(f)(1), concerning a dispute involving the special education program (the student), and the New York City Department of Education (DOE), . The hearing was held on July 8, 2016, August 4, 2016, October 5, 2016, November 30, 2016 and January 10, 2017. The parents were represented by , Advocate. The DOE was represented by , Impartial Hearing Representative.

Extensions of the compliance date were granted due to witness unavailability, and time to obtain and review the transcripts, evidence and render a decision.

A list of the witnesses who appeared and the documents admitted into evidence are annexed to this decision.

ISSUES PRESENTED

The DOE argues that it provided the student with a free and appropriate public education (FAPE) and that the relief sought by the parents in the due process complaint (DPC) was provided. Transcript (T) at 297-301

The parents argue that the DOE did not timely honor the parents’ verbal and written request for an initial evaluation. The parents request that the DOE accept her request for an initial evaluation, perform the evaluations indicated in her April 8, 2016 request and accept the independent report prepared by Dr.

. T at 289-297; Ex. 1

BACKGROUND

The student is and in the at . T at 55-57; Ex. 11

During the 2015-2016 school year the student had a entitling him to . T at 71 & 73-74 The student receives . T at 256-257 & 271-272

On November 25, 2015, the student’s was assessed by

Ex. 6

were administered and indicated

. The were also administered. Although

, the student

. The clinicians determined that the assessments revealed and recommended services and goals. Ex. B & 6

In December 2015, the student was evaluated by Dr. .

Ex. A Dr. reviewed some of the student’s reports, testing materials, and his

November 25, 2015 evaluation. She administered including , and and the .

Tests revealed that . He scored

within the

. His and were and his was . Although was a strength,

. His was

. Ex. A Dr. recommended that the student be classified as and recommended an IEP, placement in an and , as well as . Ex. A at 8

On June 9, 2016, the student was assessed to determine if he needed . Ex. 12 The clinician administered to determine , including . The clinician determined that based on his test performance and the reports of school staff, . Ex. 12 at 4

On September 16, 2016, the DOE conducted a evaluation of the student, using observation, an interview with the parent, informal evaluations and the as assessment tools. Ex. 11 The clinician noted that , and he required “ .” The clinician also indicated that

“

.” The student scored as

. The clinician determined that the student was not eligible for

. Ex. 11 at 10

EVIDENCE PRESENTED

Although only portions of the evidence are referenced herein, the testimony and documents were reviewed in full.

The DOE presented 3 witnesses. The first witness was , a at . Ms. has worked for the DOE for approximately and was the student’s teacher during the 2015-2016 school year. She taught the student and is his current , during 2016-2017 school year. T at 55-57, 70, 80 & 214

She testified that in September and October of the student’s year,

. In

November, he improved and progressed throughout the year. T at 58 & 65-66; Ex. 7, 8 &

9 The student’s strengths included

. T at 61-62 His deficits included

. T at 62-63 & 79 To address his deficits, he received . T at 63 The student also received . T at 74-75 & 81-82 Ms. believed that the student was and appropriately placed in a during the 2015-2016 school year. T at 69 & 79

Ms. testified that during the same school year, the parent spoke with her about the parents’ concerns regarding the student’s progress; the parent also indicated that she obtained an independent evaluation. Ms. informed the parent that the evaluation should be brought to the or the . The parent provided Ms. with a copy of the evaluation, and Ms. passed it on to either the or the . Ms. testified that in the Spring of the school year, the parent requested that the review the evaluation. T at 75-78; Ex. A The DOE’s second witness was , a licensed .T at 87-89 & 97 She testified that she received a written request from the parent for an initial evaluation of the student and on or about March 22, 2016, she met with the parent to perform a evaluation and obtain consent for additional evaluations. T at

89-90, 97-98, 117 & 119; Ex. 4 & 5 Ms. spoke with the student’s teacher and reviewed his report cards and some classwork, and testified that the student was . T at 9 &, 119

Ms. testified that she attempted to conduct the evaluation with the parent on four occasions, meeting with the parent three times. She met with the parent on March 30, 2016, but the parent wanted to speak with an attorney before providing consent to evaluate the student. Ms. attempted to schedule a meeting for April 8, 2016, but the parent rescheduled the meeting to April 13, 2016. On that date, the parent indicated that documents prepared by her counsel, and her own written consent form listing her stipulations, were sent to the school. On May 24, 2016, a meeting was held between Ms. , her supervisor Ms. , and the parent. Ms. testified that Ms. informed the parent about the DOE’s procedures regarding consent for the evaluation and any additional testing that may be required. She also indicated that the testing assessment used in the parents’ independent evaluation was no longer valid and thus another evaluation was required. She testified that the parent became upset and left the meeting without providing consent. Ms. testified that the parent only wanted the DOE to use the independent evaluations the parent obtained for the IEP meeting and to not perform any other evaluations with the student. On

September 13, 2016, the evaluation was conducted. T at 90-95, 101-108 &

119-125; Ex. C, D, M, O & 4

The DOE’s last witness was , a certified .

T at 147-148 She testified that in October 2016, she participated in the student’s initial IEP meeting. T at 150, 199 & 207 The student ’s school reports, as well as Dr.

’s evaluation, and and evaluations

were reviewed during the meeting. T at 151, 159-160, 168-169, 200, 203, 209 & 221; Ex.

A , 11 & 12 She testified that it was determined that the student did not require special education services as he was . T at

161-162; Ex P During the meeting, the participants discussed various forms of , that are not special education services. She testified that the parent appreciated the student’s access to these services and did not object to the denial of the special education services. T at 165-166

The parents presented one witness, , the student’s mother. T at 228

Ms. testified that the student was evaluated by Dr. in the winter of 2015 because she was concerned with . T at 227-228 & 260 She testified that Dr. conducted the evaluation, diagnosed the student with and recommended that the student be evaluated by a . T at 229-231

The student was evaluated by a and the student was recommended for services. T at 231-232

The parent testified that once she had both reports, she contacted Ms.

who told the parent to send the documents to her and she would forward them to the “school based IEP team.” T at 232 She initially sent her own request letter along with Dr. ’s evaluation and the evaluation in the student’s folder. The parent testified that in March 2016, she was contacted regarding the student’s initial evaluation and met with the , but would not sign the consent form. She testified that thereafter, she provided the DOE with the signed DOE consent form, with a stipulation that no further testing be conducted, and again attached the evaluations, but it was deemed unacceptable. T at 233-235, 237, 264 & 267

She testified that she met with the four times, including in May and September 2016 for a evaluation. T at 234, 236-237 & 267 The parent testified that when she attended the meeting with the ’s supervisor she

“stormed out” because she was told she was being a bad parent by signing the consent form with the stipulations. T at 235-236 The parent admitted that she only wanted the DOE to consider her independent evaluations. T at 280-281

Thereafter, on May 31, 2016, the parent filed a due process complaint requesting an initial evaluation. T at 238-239; Ex.1 & S In August 11, 2016, an Interim Order was issued, ordering the DOE to conduct evaluations by September 16, 2016 and convene an initial meeting to determine the student’s eligibility for special education services by September 30, 2016. T at 239-240; Ex. Q

The parent testified that on one occasion in the summer of 2016, she cancelled the evaluations because she did not like where they would be held; thereafter, she also requested that they change the evaluation date from the first day of school to a later date.

T at 240-241, 269-270 & 275

On or about October 18, 2016, an initial IEP meeting was conducted. Ex. 14 & P

The parent testified that Ms. discussed the student’s performance during the prior school year and the evaluations were reviewed. She also testified that the team discussed why the student would not receive and . T at 247-251 & 270; Ex. P

FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION

The DOE Failed to Provide the Student with a FAPE

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 (Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982 ]; Cerra v.

Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]).

The DOE Failed to Timely Evaluate the Student for Special Education Services The parent alleges that the DOE failed to timely conduct an initial evaluation of the student for special education services. The parent alleges that as of April 8, 2016, the parent had requested and provided consent for the evaluation to the DOE. Ex. A

A referral for an evaluation may be made by a student's parent or person in parental relationship (34 CFR 300.301[b]; 8 NYCRR 200.4[a][1][i]). Although state regulations does mandate the form that a referral by a parent must take, regulations do require that it be in writing (8 NYCRR 200.4[a]; Application of a Child Suspected of Having a Disability, Appeal No. 05-069; Application of a Child Suspected of Having a Disability, Appeal No. 99-69) Once an employee of a district receives a written request for referral of a student for an initial evaluation, that individual is required to immediately forward the request to the CSE chairperson and the district must, within 10 school days of receipt of the referral, request the parent's consent to initiate the evaluation of the student (8 NYCRR 200.4[a][2][ii], [iv][a]; see also 34 CFR 300.300[a]). Prior to evaluating a student, a district must provide the parent with prior written notice that "describes any evaluation procedures [the district] proposes to conduct" (20 U.S.C. §§ 1414[b][1];

1415[b][3], [c][1]; 34 CFR 300.300[a][1][i]; 300.503[a], [b][1]; 8 NYCRR 200.5[a][1],

[2], [5][i]). Subject to certain exceptions, a school district must obtain informed parental consent prior to conducting an initial evaluation (14 U.S.C. § 1414[a][1][D][i][I]; 34 CFR

300.300[c]; 8 NYCRR 200.5[b][1][i] Upon receiving the parent's consent to conduct an initial evaluation of the student, the district must complete that evaluation within 60 days (see 20 U.S.C. § 1414[a][1][C][i][I]; 34 CFR 300.301[c][1][i]-[ii]; 8 NYCRR

200.4[b][1]).

When determining whether a student is in needs of special education services, the district must use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information about the student, including information provided by the parent, that may assist in determining, among other things the content of the student's IEP (20 U.S.C. § 1414[b][2][A]; 34 CFR 300.304[b][1][ii]; see Letter to Clarke, 48 IDELR 77 [OSEP 2007]). In particular, a district must rely on technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors (20 U.S.C. § 1414[b][2][C]; 34 CFR 300.304[b][3]; 8 NYCRR 200.4[b][6][x]). A district must ensure that a student is appropriately assessed in all areas related to the suspected disability, including, where appropriate, social and emotional status (20 U.S.C. § 1414[b][3][B]; 34 CFR 300.304[c][4]; 8 NYCRR 200.4[b][6][vii]). An evaluation of a student must be sufficiently comprehensive to identify all of the student's special education and related services needs, whether or not commonly linked to the disability category in which the student has been classified (34 CFR 300.304[c][6]; 8 NYCRR 200.4[b][6][ix]).

In the instant matter, the parent acknowledges that although she requested as of February 2016 that the student be evaluated, she did not consent to the student ’s evaluation until her April 8, 2016 letter. Ex. C The DOE contends that the parent did not consent to the initial evaluation until May 16, 2016. It further contends that the parent caused the delay in the student’s initial evaluation because, initially, the parent would not provide consent to evaluations and then, once consent was obtained, the parent placed restrictions on the consent, only allowing a evaluation and to be conducted. It also alleges that the parent further delayed the process by being unavailable. T at 297-301

I find that consent was not obtained until May 16, 2016. The DOE must provide the parent with prior written notice that "describes any evaluation procedures [the district]

proposes to conduct" (20 U.S.C. §§ 1414[b][1]; 1415[b][3], [c][1]; 34 CFR

300.300[a][1][i]; 300.503[a], [b][1]; 8 NYCRR 200.5[a][1], [2], [5][i]). The DOE’s consent form provides the parent with notice of the various evaluation procedure it may conduct. I find that as early as March 2016, the parent was made aware of the consent form but refused to sign the form, thus, preventing the DOE from obtaining informed parental consent prior to conducting the initial evaluation. T at 233-235, 237, 264 & 267;

14 U.S.C. § 1414[a][1][D][i][I]; 34 CFR 300.300[c]; 8 NYCRR 200.5[b][1][i] The parent ultimately signed the form on May 16, 2016, albeit with restrictions as indicated in an attached letter. Ex. C & D Thus, the DOE had 60 days from May 16, 2016 to complete the evaluation process; accordingly, I find that the evaluation process had to be completed by July 15, 2016. 20 U.S.C. § 1414[a][1][C][i][I]; 34 CFR 300.301[c][1][i]-

[ii]; 8 NYCRR 200.4[b][1]

I find that the DOE attempted to start the process on May 24, 2016, when Ms.

and her supervisor Ms. met with the parent. I credit Ms. ’s account of the meeting with the parent. I find that Ms. informed the parent about the DOE’s procedures regarding consent for the evaluation and potential additional testing. I also find that Ms. explained to the parent that a new evaluation was required as the testing assessment used in the parents’ independent evaluation was no longer valid. As admitted by the parent, I find that the parent became upset and left the meeting without proceeding with the evaluation or consenting to a new evaluation. T at 90-95, 101-108, 119-125 & 235-236; Ex. C, D,

M, O & 4

However, after the June 9, 2016 evaluation was conducted, it is somewhat unclear as to the extent the DOE attempted to complete the evaluation process by July 15, 2016. Ex. 12 If the DOE made additional efforts to complete the process by July 15, 2016, the DOE failed to provide evidence establishing its efforts. As such, I find that the DOE failed to complete the evaluation process within the mandatory

60 day period. I note that although the parent testified that , the record does not indicate when she or the student became unavailable to complete the evaluation process. T at 238 In addition, even though the parent testified that on one occasion in the summer of 2016, she cancelled the evaluations because she did not like where it was held, there is no evidence as to when that event occurred. T at

240-241, 269-270 & 275

I do note that the record establishes that the parent resisted the evaluation process from its early stages, possibly preventing the DOE from performing a full and complete evaluation of the student. Indeed, I credit Ms. ’s testimony that the parent only wanted the DOE to use the independent evaluations the parent obtained for the IEP meeting and to not perform any other evaluations with the student; the parent admitted to this as well. T at 90-95, 101-108, 119-125 & 280-281 Ex. C & D

Importantly, despite the fact that the parent did not provide consent to the DOE to perform some of its typical battery of evaluations, I find that as the DOE can use a variety of assessments and reports to complete the evaluation process, the DOE could have performed a , used the evaluation and the independent evaluation, along with school records to complete the evaluation process. If the DOE determined that it suspected that the student had a disability in an area that the parent declined consent to evaluate, the DOE could have initiated a hearing to obtain consent to conduct the evaluation without the parents’ consent.

Requested Relief

The parents request that the DOE accept the request for an initial evaluation, perform the evaluations indicated in the parent’s April 8, 2016 letter and accept the independent report prepared by Dr. . T at 289-297;

Ex. 1 The parents indicate in the April 8, 2016 request that they consent to a evaluation and a and request an evaluation. Ex. C & D

I find that the requested relief has been provided to the parents. Indeed, the parents’ request for an initial evaluation was accepted by the DOE, as well as Dr.

’s report. I also credit Ms. ’ testimony and further find that Dr.

’s evaluation was reviewed during the October 2016 IEP meeting, although the outcome of the meeting may not have been the result the parent wanted. T at 151, 159-

160, 168-169, 200, 203, 209 & 221; Ex. A In addition, the student has received an evaluation per the parents’ request. Ex. 11 & 12 Accordingly, as no other requests for relief are contained in the parents’ due process complaint, I find that all of the parents’ requests were met by the DOE during the pendency of this matter.

NOW THEREFORE,

I find that the DOE failed to timely perform an initial evaluation of the student; and

I further find that all of the requested relief was provided to the parents during the course of the hearing and that no other relief is warranted.

Dated: March 10, 2017

SUSAN M. BARBOUR, ESQ.

Impartial Hearing Officer

SMB:

PLEASE TAKE NOTICE

The parent and/or the New York City Department of Education has a right to obtain a review of this decision by a State Review Officer of the New York State Education Department under Part 200.5(k) of the Regulations of the Commissioner of Education, Section 4404 of the Education Law, and the Individuals with Disabilities Education Act.

Directions and forms can be found on the Office of State Review website: http://www.sro.nysed.gov/RevisedRegulationsOverview.html

DOCUMENTATION ADMITTED INTO EVIDENCE ON AUGUST 4, 2016

Parents:

A , 12/15, 16 p

B , 11/25/15, 5 p

C Consent for Initial Evaluation, 4/8/16, 1 p

D DOE Evaluation, 3/30/16, 1 p

E Due Process Request, 5/31/16, 4 p

F E-mail Receipt of Hearing Request, 5/31/16, 2 p

G E-mail between parent and parent’s advocate, 6/2/17, 1 p

K Parent’s Witness List, 1 p

Department of Education

1 Due Process Complaint, 3/31/16, 5 p

2 Due Process Response, 6/8/16, 3 p

3 Proposed Resolution Agreement, 7/8/16, 2 p

4 Parent Request for Initial Evaluation, March, 1 p 5 PWN, 3/2/16, 2 p 6 , 11/25/16, 6 p

7 Request for Referral, 9/15, 4 p

8 , various dates, 23 p

9 Student Report Card, 3/4/16, 2 p

DOCUMENTATION ADMITTED INTO EVIDENCE ON OCTBER 5, 2016

Parents:

L E-mails, 9/16, 11 p

M , 9/13/16, 2 p

N Report, 9/14/16, 4 p

O E-mail with Consents, various dates, 4 p

DOCUMENTATION ADMITTED INTO EVIDENCE ON NOVEMBER 30, 2016

Parents:

P Ineligibility Documents, 10/18/16, 8 p

Q Interim Order, 8/11/16, 3 p

Department of Education

11 , 9/16/16, 11 p

12 , 6/9/16, 9 p

13 Documents Regarding Ineligibility, 10/18/16, 6 p

DOCUMENTATION ADMITTED INTO EVIDENCE ON JANUARY 10, 2017

Parents:

R Letter from Parent to the CSE, 11/28/16, 2 p

S Email with DPC, various dates, 5 p

T Letter from Parent, 10/24/16, 1 p