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FINDINGS OF FACT AND DECISION
Case Number: 159028
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: February 1, 2016
February 23, 2016
Actual Record Closed Date: March 11, 2016
Hearing Officer: Lana Flame, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 1, 2016
Student
, IHRO
, (Via Telephone)
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 23, 2016
Parent (Via Telephone) — Student
, IHRO
Pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. Sec. 1400 et seq., the Parent of the student requested an impartial hearing in a letter dated November 11, 2015. DOE Ex. 1. The Parent stated that she disagrees with the evaluation conducted by the New York City Department of Education (“DOE”) Committee on Special Education (“CSE”). The Parent stated that the student , and “ ” Id. The Parent requested that the student be re-evaluated. A pre-hearing conference was held on January 8, 2016 and the hearing was held on February 1, 2016 and February 23, 2016.[1] The Parent was self-represented. The DOE was represented by an Impartial Hearing Representative.
On January 8, 2016, during the pre-hearing conference the Parent confirmed that she disagreed with the results of the evaluation conducted by the CSE and wants an independent educational evaluation. IHO Ex. I. The DOE disagreed that the Parent requested an independent educational evaluation in the complaint. Id. The
Parent also is challenging the CSE’s determination that the student is ineligible for special education services. See also Tr. 10.
The compliance date was extended pursuant to the regulations. See IHO Exs. III,
IV.
The DOE’s Position
The DOE argued that it conducted a thorough evaluation of the student, and that based on the evaluation and , the CSE appropriately determined that the student does not need special education services at this time.
The Parent’s Position
The Parent asserted that based on the student’s failing grades he requires special education services. Additionally, the Parent disagreed with the results of the evaluation and requested additional testing be conducted to determine why
the student
.
Facts
The student is a who attends ,a
private school. The Parent referred the student for an evaluation in a letter received by the DOE on October 29, 2014. DOE Ex. 11; Tr. 16.
The Parent signed consent to have the student evaluated on December 9, 2014. DOE Ex.
10.
A evaluation was conducted on, January 16, 2015, by an outside agency contracted by the DOE. DOE Ex. 9; Tr. 16. On the , the student received a score of , placing him in the . DOE Ex. 9-2. The student’s score of fell within the ( , ). Id. The student’s score of fell within the
( ). Id.
On the the student scored , a result
that prompted the evaluator to write: “
.” DOE Ex. 9-2.
On the the student’s
were found to be in the and was in
the . DOE Ex. 9-4. When compared to other students at his age level, the student’s scores are
), ( ), and
( ). In the student’s score is
( ). DOE Ex. 9-3.
On April 21, 2015 the DOE conducted a . DOE Ex. 8. He student was in a class of at . The student was , . The student was able to . The student , but was able to . DOE Ex. 8. The student was . The
wrote that the student and
. Id. The also noted that the teacher stated that the student “ ” and
. Id.
On May 28, 2015, the CSE met to review the student’s evaluations and determine whether or not the student was eligible to receive special education services. The participants included: the parent, as a District Representative and school psychologist; , a teacher; and , a special education teacher.
DOE Ex. 6-5; Tr. 21. The meeting minutes indicate the parent concerns that the student was and because
. The student
, ,
. Id. The CSE determined that the student did not present as , that his were , and his were . Tr. 18. The CSE recommended that the student receive “ .” DOE Ex. 7-2. Due to the student’s results on the , the CSE suggested that the Parent take the student to . Id. At the hearing, Ms. explained that based on the assessments done, the team looked at the ; because , the team determined the student ineligible. Tr. 22.
In a Prior Written Notice dated May 29, 2015 the CSE informed the parent that the student did not meet the eligibility criteria for a student in need of special education services. DOE Ex. 5. Although it is not reflected as discussed in the meeting minutes, the Prior Written Notice states that
(“ ”) was considered and rejected because it was deemed too restrictive for the student. DOE Ex. 5.
Prior to referring the student to the CSE, the parent took the student to where . The student , but he still . Tr. 41-42, 55-56. The student did not need ; . Tr.
56.
On December 10, 2015, the CSE reconvened to reconsider the student ’s evaluations and his school performance. The participants included: the Parent, , a special education teacher or related services provider; as a District Representative and school psychologist; , a general education teacher; and
, the (by telephone). DOE Ex. 4-4. Ms.
informed the CSE that the student was ,
. Tr. 54. Ms. told the CSE that their evaluations seemed wrong and asked that the student be re-evaluated. Tr. 54-55. The Parent was informed that the student could not be re-evaluated because the CSE did not have a reason to do a re-evaluation. Tr. 55.
In a letter summary dated December 10, 2015 the CSE informed the Parent that it had reviewed the previous evaluations and as a result of the meeting, it was determined that the student is not eligible for special education services because the student does not have a disability as defined in Part 200 of the Regulations of the Commissioner of
Education.
By Prior Written Notice dated December 11, 2015 the CSE notified the Parent with the same information as provided in the May 29, 2015 Prior Written Notice. DOE Ex. 3. Again Ms. explained at the hearing that the same determination was made because “ ” Tr. 26. Ms. acknowledged that the student may be , but that does not mean that he has a disability. Tr. 27.
Ms. testified that at no time did the CSE make a determination about what assessments might be needed to evaluate the student in all areas of suspected disability.
Tr. 35. The CSE only conducted the evaluation. Id. The CSE discussed what the reasons could be for the student’s , such as or as reported by the parent, but the CSE did not determine the cause. Tr. 36.
The student’s helps the student with and observes that .
The also observed that the student and
. Tr. 38-39.
The student had an appointment for an evaluation, but the evaluator came early for the evaluation, would not wait for the student, and never rescheduled. Tr. 52, 56-57. The student continues to
. Tr. 52-53.
Conclusions of Law
The DOE did not assess the student in all areas of suspected disability and therefore the DOE determination that the student is ineligible for special education services cannot be upheld. Additionally, the Parent, a non-attorney stated in her complaint that she did not agree with the DOE’s evaluation and wanted another one. The
Parent’s request can reasonably be taken for a request for an independent educational evaluation, to which she would be entitled under the circumstances.
The Department of Education has the burden to prove that it met the requirements of the IDEA, New York Education Law Sec. 4404 and Part 200 of the New York State Education Commissioner regulations in evaluating the student and making its determination of eligibility. Educ. Law § 4404[1][c].
When a student suspected of having a disability is referred to a CSE, the CSE, upon receipt of consent, must ensure that an evaluation of the referred student is performed (20 U.S.C. § 1414[a][1][A]; see 34 CFR 300.301[a]), which must include at least a physical examination, an individual psychological evaluation (unless a school psychologist assesses the student and determines that such an evaluation is unnecessary), a social history, an observation of the student in the current educational placement, and other appropriate assessments or evaluations as necessary to ascertain the physical, mental, behavioral, and emotional factors which contribute to the suspected disabilities (8 NYCRR 200.4[b][1][i]-[v], [j][1]). The student must be assessed in all areas of suspected disability (20 U.S.C. § 1414[b][3][B]), including, "if appropriate, health, vision, hearing, social and emotional status, general intelligence, academic performance, communicative status, and motor abilities" (34 CFR 300.304[c][4]; 8 NYCRR 200.4[b][6][vii]). The evaluation must be "sufficiently comprehensive to identify all of the child's special education and related services needs, whether or not commonly linked to the disability category in which the child has been classified" (34 CFR 300.304[c][6]; 8 NYCRR
200.4[b][6][ix]).
Student evaluations are to be administered in a manner that is most likely to yield relevant and accurate information about what the child knows and can do academically, developmentally and functionally. 34 C.F.R. § 300.304(b)(1)(I). The evaluators must use technically sound testing instruments. 20 U.S.C. § 1414(c)(1)(A)(ii), (iii); 34 C.F.R. §
300.305(a)(1). Moreover, as part of an initial evaluation, the CSE must, as appropriate, "review existing evaluation data on the child" including "evaluations and information provided by the parents of the child" (20 U.S.C. § 141 4[c][1][A][i]; 34 CFR
300.305[a][1][i]; 8 NYCRR 200.4[b][5][i]). Any additional assessments need only be conducted if found necessary to fill in gaps in the initial review of existing evaluation data (20 U.S.C. § 1414[c][2]; see also D.B. v. New Y ork City D ep't of Educ., 966 F. Supp. 2d
315, 329-30 [S.D.N.Y. 2013]).
The DOE’s only witness was the who for the CSE, on two occasions, reviewed the student’s testing which consisted only of a evaluation with one assessment, one assessment, and a assessment. DOE Ex. 9. No reasonable explanation was offered by the DOE to justify the minimal testing done under the accepted facts of the case. The only explanation offered for the CSE determination was that based on the two tests done within the evaluation, the . Tr. 22, 26. The testified that at two different meetings the CSE spent some effort trying to figure out why the student is , facts not in dispute. Although some mention was made of issues of and the parent brought issues about to the attention of the CSE, no testing was done to assess the student in these areas.
As part of an initial evaluation the CSE could meet, review the evaluative data, and if appropriate, determine what additional data, if any are needed (see 8 NYCRR
200.4[b][5]). The testified that here that determination never was made. Tr. 35. Instead the CSE, with insufficient information given the student’s , made its final determination.
The student must be assessed in all areas of suspected disability. 20 U.S.C. § 1414(b)(3)(B). See also A pplication of a Student with a Disability, Appeal No.15-010,
May 29, 2015.
As noted above, the Parent disagreed with the DOE’s evaluation and asked for an evaluation in the due process complaint. DOE Ex. 1. Although the DOE disagreed during the pre-hearing conference, the Parent confirmed her request for an evaluation during the pre-hearing conference. The Parent’s disagreement could not have been stated more plainly: “ ” DOE Ex. 1. If the parent disagrees with an evaluation obtained by the school district, the parent has a right to obtain an independent educational evaluation at public expense. 8 NYCRR 200.5 (g).
The Parent also made clear that she disagreed with the evaluation based on the student’s failing school performance and the lack of explanation offered by the CSE’s testing.
These are sufficient reasons to award the Parent an independent educational evaluation at public expense.
For the reasons stated above, I am ordering that the Department of Education pay for an independent evaluation.
ORDER
1. The Parent may obtain an independent evaluation for the student, at Department of Education expense, at a cost that is reasonable and customary in the community.
2. The Department of Education shall provide to the parent a list of evaluators. The Parent may choose from that list or choose another evaluator so long as the individual is appropriately licensed.
3. The Parent shall provide the evaluation report to the CSE.
4. The CSE shall convene to consider the results of the evaluation as well as all of the existing evaluative information to determine whether or not the student is eligible for special education services.
Dated: March 21, 2016
LANA FLAME, ESQ.
Impartial Hearing Officer LF:
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 Letter from , 1/13/16, 1pp
B Letter from , 1/11/16, 1 page
DEPARTMENT OF EDUCATION
1 DPC, 11/11/15, 1 page
2 DPR, 12/1/15, 4 pages
3 PWN, 12/11/15, 3 pages
4 Ineligibility packet, 12/10/15, 5 pages
5 PWN, 5/29/15, 3 pages
6 Ineligibility packet, 5/28/15, 5 pages
7 Meeting minutes, 5/28/15, 4 pages
8 , 4/21/15, 1 page
9 , 1/16/15, 6 pages
10 Parental consent, 12/9/14, 1 page
11 Request for evaluation, 10/29/14,1 page
IHO
I Pre-hearing conference summary, 1/8/16, 2pp
II Letter from , 1pp
III Order for extension of the compliance date
IV Order on Extension of Compliance date, 3/11/16, 1pp
Footnotes
[1] The pre-hearing conference and hearing dates were scheduled to accommodate the Parent’s . The first hearing date was scheduled for January 21, 2016, but the Parent was unable to attend because . On February 1, 2016, by agreement of the parties, the Parent was represented by , , because . Tr. 4-5; IHO Ex. II.