The State Education Department
State Review Officer
Application of a CHILD WITH A DISABILITY, by her parent, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the Springville-Griffith Institute Central School District
Andrew K. Cuddy, Esq., attorney for petitioner
Hodgson Russ LLP, attorneys for respondent, Jerome D. Schad, Esq., of counsel
Petitioner appeals from an impartial hearing officer's decision finding that respondent evaluated petitioner's child in a timely fashion, and that, although respondent should review its procedures for identifying and evaluating students with disabilities in private schools, respondent did not abrogate its child-find obligations such as denied petitioner’s child a free appropriate public education (FAPE). The appeal must be sustained in part.
Petitioner's daughter was a seven year old child attending St. Aloysius, a private school located within the respondent Springville-Griffith Institute Central School District (Springville). The student was evaluated and classified during the impartial hearing procedures, and that classification is not an issue in this appeal (Transcript p. 88).
Petitioner referred his daughter to the Springville Committee on Special Education (CSE) via letter dated April 26, 2002, when the child was in first grade (Exhibit 19). The child had been enrolled at St. Aloysius since kindergarten, when her teacher indicated that she might be in need of academic services. (Transcript p. 119). A reading teacher at St. Aloysius performed the Early Literacy Profile assessment on the child in kindergarten, which revealed that the child was in the low-average range. (Transcript p. 120). The reading teacher consulted with the child’s kindergarten teacher as to interventions (Id). After repeat testing in the 2001-2002 school year, when the child was in first grade, the child began receiving reading services five days per week along with math instruction and language therapy (Id.; Transcript pp. 121-124, 129). On April 25, 2002 the child’s reading instructor met with the parents, during which time she suggested that the child might have auditory processing difficulties (Transcript p. 124). The instructor suggested that the parents have the child evaluated by an audiologist (Id). Petitioner referred the child to Springville’s CSE the next day.
Although some evaluations were completed, a physical exam was not done and the CSE neither met nor made a recommendation as to the child’s disability or placement by August 12, 2002, on which date petitioner’s attorney requested an impartial hearing.1 (Transcript pp. 11, 12, 17-20). The hearing commenced on September 10, 2002, at which time petitioner refused to testify even though he was present because he was not served with a subpoena (Transcript pp. 59-61). The hearing officer adjourned the hearing to September 25, 2002 so that respondent could serve petitioner with a subpoena. On September 17, 2002, the CSE convened and an IEP was formulated (Transcript pp. 64, 88). On September 25, 2002, the hearing resumed and testimony was heard on the issue of respondent’s identification and evaluation of students with disabilities in private schools and of this child in particular.2
At the outset, respondent asserts that the petition should be dismissed because of petitioner’s failure to file a Notice of Intention in accordance with 8 NYCRR §279.2. The hearing officer’s determination is dated October 30, 2002. Though it is not clear when petitioner received the determination, petitioner served a petition for review on respondent on November 19, 2002, which was filed with the State Education Department by letter dated November 22, 2002. On November 30, 2002, respondent served an answer. On December 2, 2002, respondent filed the record in accordance with 8 NYCRR §279.4. Petitioner thereafter filed a Notice of Intention on January 29, 2003.
The purpose of a Notice of Intention to Seek Review is to ensure that the record is provided to the State Review Officer (8 NYCRR §279.2[a]; Application of a Child with a Disability, Appeal No. 02-074). Although the Notice of Intention was not filed until January 29, 2003, three months after the decision was issued, the respondent was clearly on notice that petitioner wished to appeal the same by virtue of the petition, which was timely served on November 19, 2002. Respondent provided the record shortly thereafter. While petitioner’s omission should not be condoned, it did not result in any significant delay or prejudice in this case. I therefore decline to dismiss the petition.
The central issue in this appeal is whether respondent violated the applicable regulations for evaluating and implementing services for a student suspected of having a disability. The regulations provide that upon referral, a committee on special education shall conduct an individual evaluation which must include at least: "(i) a physical examination in accordance with the provisions of sections 903, 904 and 905 of the Education Law; (ii) an individual psychological evaluation; (iii) a social history; (iv) an observation of the student in the current educational placement; and (v) other appropriate assessments or evaluations …" (8 NYCRR §200.4[b]). The regulations further provide that "within 60 school days of the receipt of consent to evaluate for a student not previously identified as having a disability … the board of education shall arrange for appropriate special programs and services." (8 NYCRR §200.4[e])(emphasis added)).
Petitioner relies on two letters to assert respondent’s failure to comply with these regulations. The first letter, dated April 26, 2002, stated the following: "I am referring my child … to the Committee on Special Education in accordance with Part 200.4 of NYCRR. The staff of St. Aloysius Regional School has indicated that they believe [the child] is a student with a disability. The referral to the CSE includes a requirement that [the child] be evaluated in all areas of suspected disability. This letter serves as our consent to evaluate [the child] and that at a minimum the evaluation should include at least: (1) A physical examination in accordance with the provisions of section 903, 904, and 905 of Education Law. (2) An individual psychological evaluation. (3) A social history (4) An observation of the student in the current educational placement, and (5) Other appropriate assessments or evaluations, including a functional behavioral assessment for a student whose behavior impedes on his or her learning or that of others, as necessary to ascertain the physical, mental, behavioral, and emotional factors which contributes [sic] to the suspected disabilities. I also request and consent to the following evaluations: Central auditory evaluation, speech/language evaluation, reading evaluation and vision and hearing exams." (Exhibit 19).
Springville responded by letter to petitioner dated April 30, 2002. The letter indicated that in order for the child to be evaluated, the parent would have to consent to certain evaluations and "provide a copy of the child’s most recent health certificate or contact the school to arrange for the school physician to evaluate the child" (Exhibit 25). The mailing also included a description of petitioner’s legal rights, a brochure entitled "Special Education in New York State for Children Ages 3-21: A Parent’s Guide", Springville’s consent form, and a social history questionnaire (Id).
Petitioner responded by letter dated May 6, 2002, and received by Springville on May 8, 2002. That letter stated in pertinent part the following: "I believe my letter dated 26 April 2002 gives the district the consent to evaluate [the child] … Please do not delay any further in your obligations to evaluate this child." (Exhibit 16). Petitioner also completed and returned the social history form sent by Springville.
The purpose behind the Individuals with Disabilities Education Act (IDEA) is to ensure that children with disabilities have available to them a free appropriate public education (FAPE) (20 U.S.C. 1400[d][A]; see Mrs. W. v. Tirozzi, 832 F.2d 748, 750 [2nd Cir. 1987]). A FAPE consists of specialized education and related services embodied in an IEP (34 C.F.R. 300.13). A board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (M.S. v. Bd. of Educ. of the City of Yonkers, 231 F.3d 96, 102 [2nd Cir. 2000]; Application of a Child Suspected of Having a Disability, Appeal No. 93-9; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Handicapped Child, 22 Educ. Dept. Rep. 487 ). To meet its burden of showing that it provided a FAPE to an individual child, a board of education must show (a) that it complied with the procedural requirements set forth in IDEA, and (b) that the IEP developed through the IDEA’s procedures is reasonably calculated to enable the child to receive the educational benefits (Bd. of Educ. v. Rowley, 458 U.S.176, 206-207 ).
Both the Supreme Court and Congress place great importance on the procedural provisions of the IDEA (Rowley, 458 U.S. at 205 ["the importance Congress attached to these procedural safeguards cannot be gainsaid"]). Moreover, "adequate compliance with the procedures prescribed [by the IDEA] would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP" (Rowley, 458 U.S. at 206; M.S. v. Bd. of Educ. of the City of Yonkers, 231 F.3d 96, at 102). The initial procedural inquiry is no mere formality (Walzak v. Florida Union Free Sch. Dist. 142 F.3d 119, 129 ([2d Cir. 1998]). These detailed procedural provisions "lie at the heart" of the statute (Evans v. Bd. of Educ. of the Rhinebeck Cen. Sch. Dist., 930 F. Supp. 83, 93 [S.D.N.Y. 1996]). They are not mere procedural hoops through which Congress intended state and local educational agencies to jump, rather the procedures are themselves a safeguard against arbitrary or erroneous decision making (Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036, 1041 [5th Cir. 1989]; Engwiller v. Pine Plains Cent. Sch. Dist., 110 F. Supp. 2d 236, 247 [S.D.N.Y. 2000]; Evans, 930 F. Supp. 83 at 93).
Petitioner argues that his initial letter of April 26, 2002 gave consent. Both federal and state regulations make it clear, however, that in order for parental consent to be valid, it must be "informed." (34 C.F.R. §300.505; see also 8 NYCRR §200.1(l) [defining "consent" as meaning that the parent has been fully informed of all information relevant to the activity for which consent is sought]) While petitioner’s first letter almost mirrors the applicable state regulation for evaluating students, the school was not required to guess as to petitioner’s familiarity therewith, and acted responsibly by sending petitioner information as to his rights. Petitioner nevertheless clearly consented by May 8, 2002, the date on which respondent received the second letter. As such, the CSE should have met, evaluated this child and formulated an IEP by August 12, 2002.
This was not done, and the procedural guidelines established by regulation were therefore violated. Respondent blames this failure on the petitioner, who neither forwarded the child’s health certificate nor arranged for the child’s examination in accordance with the school’s letter of April 30, 2002. Respondent therefore claims that it lacked consent to conduct a physical examination. Petitioner blames the failure on respondent, who according to petitioner, had consent to conduct a physical examination.
Respondent’s contentions are without merit. Indeed, if respondent believed that petitioner had withheld or withdrawn consent to evaluate (which is unlikely on this record) respondent had legal remedies for that situation. Regulations provide that "[i]n the event that parental consent is not obtained within 30 days of the date of receipt of the referral, the chairperson shall document attempts made by the chairperson or other representatives of the committee to obtain parental consent, and shall request that the board of education initiate an impartial hearing …" (8 NYCRR §200.4[a]; see also 34 C.F.R. §300.505[b]).3 The school cannot on the one hand claim that it lacked consent to evaluate and on the other fail to heed the procedural remedies set forth to address that very situation. As such, I find that respondent failed to timely evaluate this child.
Having found that respondent failed to comply with the procedural requirements set forth in IDEA, I must now address whether the failure resulted in a denial of FAPE. I conclude that it did not under the circumstances of this case. "Procedural flaws do not automatically require a finding of a denial of FAPE, but procedural inadequacies that individually or cumulatively result in the loss of educational opportunity, or seriously infringe on a parent’s participation in the creation or formulation of the IEP, clearly constitute a denial of FAPE." (Application of a Child with a Disability, Appeal No. 02-015, citing Shapiro v. Paradise Valley Unified Sch. Dist., 317 F.3f 1072, 1079 [9th Cir. 2003]; Knable v. Bexley City Sch. Dist., 238 F.3d 755, 766 [6th Cir. 2001], cert. denied 533 U.S. 950 ; Heather S. v. State of Wisconsin, 125 F.3d 1045, F.2d 1045, 1059 [7th Cir. 1997]; W.G. v. Bd. of Trustees of Target Range Sch. Dist. No. 23, 960 F.2d 1479, 1484 [9th Cir. 1990]; Burke Co. Bd. of Educ. v. Denton, 895 F.2d 973, 982 [4th Cir. 1990]; W.A. v. Pascarella, 153 F.Supp. 2d 44, 153 [D.Conn. 2001]; J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69-70 [2nd Cir. 2000] [relief is warranted only if the procedural violation affected the student’s right to a FAPE]).
In this case, the child should have been evaluated and an IEP developed by August 12, 2002. The CSE did convene in the midst of hearing proceedings on September 17, 2002, at which time an IEP was formulated and services were presumably implemented. Although the 2002-2003 school year started before the first hearing commenced on September 10, 2002, the number of school days during which this child was without an IEP or appropriate services is not ascertainable on this record (Transcript pp. 19, 39). It is presumed that the number of days was minimal.4 Therefore, given the fact of this case, I decline to hold that the delay in the formulation of the IEP constituted a denial of FAPE.
As to petitioner's remaining contentions that the school abrogated its child-find obligations such as denied this child FAPE, I find insufficient evidence to modify the impartial hearing officer's determination of this issue. Testimony from the reading teacher at St. Aloysius, the school nurse at St. Aloysius (who is also the nurse at Springville) and the Superintendent of Springville revealed that while students are referred from St. Aloysius to Springville’s CSE, and there is collaboration between the schools, the procedures are unclear (Transcript pp. 109-110, 128, 136, 156; Exhibits 31, 32). It is nevertheless disconcerting that the St. Aloysius reading teacher suggested that the student’s parents have the student evaluated by an audiologist rather than referring the student to Springville’s CSE (Transcript pp. 123-124). A reading teacher would have access to a number of children with possible disabilities and should be aware of when it is appropriate to refer a student to a CSE for evaluation. In light of that, I agree with the impartial hearing officer that Springville should review its procedures for identifying and evaluating children with disabilities in private schools who are residents of the district.
In conclusion, I must comment on the parties’ apparent lack of communication and lack of focus upon the child in this case. The record does not reflect whether either party attempted any form of communication other than the letters referred to herein. Surely, a phone call by either party within the 60 days as to the scheduling of a physical examination would have obviated the need for this hearing and would have more quickly provided services to this child (See Application of a Child Suspected of Having a Disability, Appeal No. 96-61). Indeed, the very spirit of the IDEA, its state counterpart and applicable regulations, is one of cooperation between educational agencies and parents for the benefit of the child (Id). It is evident here that there was no cooperation.
I have considered petitioner's remaining contentions and find them to be without merit.
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that the hearing officer’s decision is hereby annulled to the extent that it found that respondent had timely evaluated this child.
Albany, New York
October 28, 2003
PAUL F. KELLY
1 Respondent initially moved to dismiss the hearing and return the matter to the Springville CSE, arguing that the request for hearing was premature. Regulations state that “within 60 school days of the receipt of consent to evaluate for a student not previously identified as having a disability … the board of education shall arrange for appropriate special programs and services.” (8 NYCRR §200.4[e]). The school maintained that it was impracticable for the CSE to have met without petitioner’s consent to a physical examination of the child in accordance with Education Law sections 903, 904 and 905, which it claimed it did not receive until May 8, 2002 (Transcript pp. 12, 37). The regulations define a school day as “any day, including a partial day, that students are in attendance at school for instructional purposes … except that, during the months of July and August, school day means every day, except Saturday, Sunday, and legal holidays.” (8 NYCRR §200.4[n]). Respondent argued that the 60 day requirement did not expire until August 13, 2002, asserting that the following days did not “count”: May 24, 2002, May 27, 2002 and June 26, 2002 through June 28, 2002 because school was closed; June 25, 2002 because it was a staff development day; and July 4, 2002 and July 5, 2002 due to Independence Day. As July 5, 2002 was not a legal holiday, Petitioner’s request for a hearing was not premature.
2 Petitioner was not served with a subpoena subsequent to the first hearing date and did not appear at the adjourned hearing. Regardless, his refusal to testify at the initial hearing date when he was already present in the room appears to be unreasonable and not in the best interest of the child.
3 Additionally, New York State law provides that although each public school pupil must provide a health certificate within 15 days of the child’s entrance to first, third, seventh and tenth grades, the law also provides that if a child fails to do so “the principal or teacher in charge of the school shall cause a notice to be sent to the parents of such pupil that if the required health certificate is not furnished within fifteen days from the date of such notice, an examination will be made of such pupil …” Education Law §903. Respondent could very well have sent a notice to petitioner and conducted the examination.
4 The petitioner, though refusing to testify under oath, did state at the first hearing that speech services the child had previously received were being withheld pending the recommendation of the CSE (Transcript p. 39). If services were withheld, it is unclear as of what date. Based on petitioner’s statement that the child had received the services “for the last two years” prior to the cessation, it is most likely that services were withheld as of whatever date the 2002-2003 school year began, which is also not clear from the record (Id). Petitioner’s failure to testify leaves this as well as many other questions unanswered.