The State Education Department
State Review Officer

 

No. 04-081

 

 

 

 

 

 

Application of a CHILD WITH A DISABILITY, by his parents, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the Southold Union Free School District

 

 

Appearances:
Ingerman Smith, L.L.P., attorney for respondent, Susan E. Fine, Esq., of counsel

 

 

DECISION

 

            Petitioners appeal from the decision of an impartial hearing officer which determined that respondent's Committee on Special Education (CSE) properly declassified petitioners' son and denied petitioners reimbursement for tutoring services.  Respondent cross-appeals from that part of the hearing officer's decision which awarded reimbursement to petitioners for a laptop computer for their son.  The appeal must be sustained in part.  The cross-appeal must be dismissed. 

 

            At the time of the parents' request for an impartial hearing, the student was 16 years old and entering tenth grade at respondent's high school (see Parent Ex. Y; Dist. Ex. 1).  In the first half of his 2001-02 eighth grade year, the student had been receiving Academic Intervention Services (AIS) in the form of a remedial English class for one period every six days (Tr. p. 708).  In January 2002, after noticing continuing problems in her son's reading, writing, and penmanship, the student's mother referred her son to respondent's CSE (Tr. pp. 47-48, 54, 689, 704-05).  Teacher observations confirmed that the student was having some problems with written assignments and focusing his attention in class (Dist. Exs. 27-31).  A psychoeducational evaluation was conducted from February 2002 to April 2002, wherein a series of standardized tests were administered (Parent Ex. B).  The school psychologist concluded in his report that  "[a]cademic achievement testing was consistent with estimated ability, with all skills within the average to high average range," and that the student was not eligible for special education services (Parent Ex. B at 1).  The CSE met on April 10, 2002 and recommended that the student not be classified, but recommended that he receive services under Section 504 of the Rehabilitation Act, and that his English AIS classes be increased to three periods every six days (Parent Ex. C; Dist. Ex. 24; Tr. pp. 65-66, 708).  A Section 504 Accommodation Plan was developed for the student for the remainder of the 2001-02 school year which, based on "a comparative weakness in written expression," increased the frequency of the student's English AIS class as recommended, and allowed for use of a spell-check device and up to 1.5 extended time on tests (Parent Ex. E; Dist. Ex. 22).  Petitioners, however, disagreed with the results of the psychoeducational evaluation, and obtained an independent educational evaluation (IEE) at public expense with approval from the CSE  (Tr. pp. 74, 709-710, 1034; see Dist. Ex. 23). 

 

            The IEE was completed on June 13, 2002 (Parent Ex. G).  The private neuropsychologist concluded that the student's cognitive functioning was in the high average range, with strengths in mathematics, but with mild deficits in attention and motor functions, and "significant" deficits in reading (Parent Ex. G at 4).  The student was diagnosed with a "reading disorder" (id.).  The student's overall reading skills were estimated to be at the fifth grade level (id.).  The independent evaluators recommended that "considering the discrepancy between his overall cognitive functioning and academic achievement," the student be classified as a student with a learning disability, and recommended a daily resource room in organizational skills, a reading specialist trained in multisensory instruction, and various educational accommodations, including strongly recommending the student be provided with the use of a word processor for notes, tests, and assignments (Parent Ex. G at 5-6).  On August 21, 2002 the independent evaluators provided an addendum to the report, which again noted "significant discrepancies" between the student's intelligence and his reading achievement in certain subtests of the Woodcock Johnson Tests of Achievement - Third Edition (WJ-III), explaining however, that the reading scores were by no means below average, but were more at the low end of the average range, 20 points below the student's full scale IQ score (Parent Ex. H. at 1).  In the addendum, the evaluator diagnosed the student with a "residual, partially compensated Reading and Written Language Learning Disability" and "Attention Deficit Hyperactivity Disorder, Mixed Type, Mild" (Parent Ex. H at 1).  The addendum continued to recommend resource room services for organizational skills and again suggested multisensory instruction in reading (Parent Ex. H at 2).

 

            The CSE met on August 26, 2002 at the parents' request to review the IEE and to develop the student's program for the 2002-03 ninth grade school year (Parent Ex. I).  The CSE concluded that the student had a "relative weakness in reading decoding and a written language disability" (Parent Ex. J at 4).  The individualized education program (IEP) classified the student as a student with a learning disability and placed him in a 41-minute daily resource room for organizational skills and a 41-minute daily remedial reading class with a reading specialist trained in multisensory instruction (Parent Ex. J).  It also provided various test modifications, including extended time for tests, teacher notes, and books on tape (Parent Ex. J at 4).  Goals and objectives were provided in reading and organizational skills (Parent Ex. J).  During the first half of the 2002-03 school year, the student's math and science teachers indicated that the student still needed help at times (Dist. Exs. 39, 14, 40), but his reading and resource room teachers, who reportedly worked closely together, found that he was making some progress (Tr. pp. 209, 276-281, 404-05; Parent Ex. X).  The parent requested a CSE meeting in December 2002, after which the IEP was amended to increase extended time limits to 2 times for all tests and quizzes, and to add the use of a word processor (Alpha Smart) to the test modifications section (Dist. Ex. 13).  On January 5, 2003 the CSE met again at the parent's request, and added a statement to the student's IEP that provided him with an additional set of textbooks for highlighting purposes (Dist. Ex. 10) The January IEP included a statement by the student's reading teacher that he had made significant progress in decoding but that his attending weaknesses continued to impact on his ability to read (id.).

 

            The student's mother met in March 2003 with the superintendent and the student's resource room teacher to discuss acquiring a particular assistive technology device for her son (Tr. p. 1068).  On March 3, 2003, the student's mother received a letter from the school superintendent marked "Second Notice," requesting consent to evaluate the student for "annual reviews," stating "we will need to conduct educational evaluations and tests"; the letter enclosed consent forms for both an educational evaluation and a speech-language evaluation (Parent Ex. DD). On March 14, 2003 the student's mother responded by letter to the superintendent that this was the first such notice she had received, and, since the student has just gone through a full educational evaluation in order to be classified six months ago, suggested that they use the next CSE meeting to focus on IEP implementation issues and obtaining and reviewing a new Assistive Technology Evaluation (ATE) to determine if the student qualified for the new technology device (Parent Ex. EE; Tr. pp. 769-770).  The student's mother met with the superintendent again and, according to her uncontroverted testimony, he agreed with her to limit the evaluations to just the ATE before the next CSE meeting and to "see where we're going to go" (Tr. p. 1118; see Tr. pp. 1076-77, 1105).

 

Meanwhile, during this same month, on March 3, 2003, the student's resource room teacher, although not herself a reading specialist (Tr. p. 253), devised and administered to the student a "Listening and Writing Skills" class assignment to determine the extent of his reading abilities (Parent Ex. N; Tr. pp. 234-37).  The assignment consisted of the student writing down twenty words and five sentences that were read to him (id.).  She also prepared an "Annual Resource Room Report" which recommended declassifying the student (Parent Ex. M).  On March 17, 2003 the student's reading teacher completed an "Annual Progress Report" on the student which recommended he be discharged from reading services (Parent Ex. U). One-page teacher comment sheets were also gathered from each of the student's teachers (Parent Exs. O, P, Q, R, S, T, V).  Petitioners were notified that the next CSE meeting was scheduled for the end of March (Tr. p. 770).  The student's mother called the CSE office and asked what the purpose of the meeting was when the ATE had not been performed; she was told simply that the meeting would be rescheduled after the ATE (Tr. pp. 770-71).  An ATE was conducted in April and completed on April 29, 2003 (Parent Ex. L); the CSE meeting was rescheduled for May 2, 2003 (Tr. p. 1076).  The meeting was described to the parents as an "annual CSE" meeting (Tr. pp. 773, 1076).

 

            At the May 2, 2003 CSE meeting, the student's resource room teacher discussed her annual report (Parent Ex. M) and stated that the class assignment she had administered to the student (Parent Ex. N) demonstrated to her that he did not have a disability and she recommended that the student be declassified (Tr. pp. 101, 239-40, 297-98, 786-791).  The student's reading teacher discussed her report and stated she felt the student had achieved all his reading goals and was at grade level and no longer needed reading services (Parent Ex. U; Tr. pp. 433, 779-80).  The student's mother disputed this fact, and indicated that she had to read her son's assignments to him each night for two to three hours (Tr. pp. 748, 780).  The occupational therapist went over the ATE, which concluded that the student needed continued use of the word processor and recommended Inspiration Software, but declined to recommend any new technology devices (see Parent Ex. L; Tr. pp. 784-85). The CSE also reviewed the one-page teacher comment sheets (Parent Exs. O, P, Q, R, S, T, V; see Tr. pp. 103-05), the student's most recent report card (Parent Ex. W; see Tr. pp. 109-112) and the first three quarters of his IEP progress report (see Parent Ex. X; see Tr. pp. 112-14).  According to the student's mother's unrefuted testimony, the school psychologist did not give a report on the student at the meeting, and left halfway through it (Tr. pp. 780-81).  She also was uncontradicted in her testimony that half of the participants at the CSE meeting left before the end of the meeting (Tr. pp. 1079-80).  At the end of the meeting, the CSE chair asked if everyone was in favor of declassification (Tr. p. 796); the parent stated that this was the first time they were informed that the CSE was considering declassifying their son (Tr. pp. 796-97, 825, 1078).  The parent and the parent's advocate objected (Tr. pp. 1078-80), but the CSE chair closed the meeting (Tr. pp. 797, 1109).  The parent later requested a follow-up CSE meeting (Tr. p. 809).  In June, the CSE suggested two dates during Regents examinations week; the parent asked for a day after Regents testing was completed, but no mutually agreed upon date was reached (Tr. pp. 170, 809-10, 827, 1083-84, 1109-12, 1116). 

 

On July 5, 2003 the parent received a 2003-04 "Declassification Document" from the CSE notifying them that the CSE had recommended to respondent, based on the May 2, 2003 CSE meeting, that petitioners' son be declassified (Parent Ex. CC, Z; see Tr. pp. 823, 1084-85).  The document listed the members of the CSE, stated that the purpose of the meeting was an annual review, and summarized the reasons for the declassification, stating that the student demonstrated improvement in reading and writing skills, had met his IEP goals, and was currently demonstrating age/grade appropriate decoding, reading, vocabulary and comprehension skills (Parent Ex. Z).  For declassification support services, the document recommended that the student continue to receive the test modifications and accommodations that were listed on his last IEP and the Inspiration Software program (id.).  The following documents were listed as the basis of the decision to declassify: the April 2003 Assistive Technology Evaluation, the March 17, 2003 Annual Progress Report in reading, the district's April 2002 psychoeducational evaluation, and recent teacher comment sheets (id.).  After she received the notice of declassification, on July 11, 2003, the student's mother called the CSE chair and left a message that she needed to schedule a meeting for her son right away (Parent Ex. 6).1  She also scheduled another evaluation for the student with the student's independent neuropsychologist (Tr. pp. 1092-93).

 

            On August 7, 2003, the student was re-evaluated by the same neuropsychologist who performed the original IEE the previous summer (Dist. Ex. 2).  The evaluator administered various standardized tests and noted that deficits continued to exist in attention, language and motor functions (Dist. Ex. 2 at 5).  He noted that "relative weaknesses continue to be evident in aspects of reading," but that the student's reading abilities were "somewhat improved over last year" (id. at 6).  However, even though the student had made "significant gains" in reading, the evaluator found that "aspects of [the student's] reading skills continue to be an area of mild weakness in comparison to both his grade matched peers as well as when considering a comparison between his overall reading abilities and his own level of general intellectual functioning" (id. at 7).  For example, the evaluator noted that testing revealed a standard deviation of 1.1 between the student's overall IQ score and his performance scores on three word subtests, 1.3 between his IQ and his phonological awareness scores, and 1.74 between his IQ and his phonological memory scores (id. at 6).  In his report, the evaluator diagnosed the student as having a "residual but improved Reading Disorder," and recommended that he continue to be classified as a student with a learning disability (id. at 6, 8); however, he also admitted that "it is equally true that [the student's] reading skills are now within average range, despite the IQ-reading discrepancy, and thus represent a relative weakness rather than a major deficit" (id. at 8).  The evaluator concluded by recommending the continued use of supports such as resource room for organizational skills, keyboard access, test modifications, and possible continuation of a multisensory reading remediation program (id. at 7-8). 

 

            By petitioners' attorney's letter dated August 29, 2003, petitioners objected to their son's declassification, and requested an impartial hearing (Exhibit 1).  The hearing commenced on November 19, 2003 and concluded on June 2, 2004.  The hearing officer rendered his decision2 on September 2, 2004, finding that the student was properly declassified, but awarding petitioners reimbursement for the cost of their son's laptop computer.  Petitioners appeal the declassification on various procedural and substantive grounds and requests reimbursement for tutoring services; respondent cross-appeals the award of reimbursement for the cost of the laptop computer.

 

            There is an initial procedural issue with respect to respondent's cross-appeal.  The Regulations of the Commissioner of Education specifically state that "All pleadings shall be verified…An answer shall be verified by the oath of the respondent submitting such answer.." (8 NYCRR 279.7).  Respondent submitted an Answer with a cross-appeal dated October 22, 2004.  Petitioners correctly raised in their Reply that respondent failed to submit a notarized verification with its Answer (Reply, pp. 1-2).  By letter dated November 3, 2004, respondent’s counsel objected to petitioners' Reply to the extent that it went beyond the scope of the Answer, but failed to address the verification issue (see Letter to Office of State Review, dated Nov. 3, 2004).  In a subsequent letter which was copied to respondent dated November 5, 2004, petitioners again raised the issue that respondent's Answer was not properly verified, noting parenthetically that the attorney who prepared the Answer was not the same attorney who was present at the hearing (see Letter from Petitioners to Office of State Review, dated Nov. 5, 2004).  It has now been over a month since this Office received the unverified Answer, respondent has been notified twice of its error, and no verification has been received by this office.  It is well established that verification errors may be corrected by subsequent submission to the Office of State Review of a verified copy of the pleading in question (see, e.g., Application of a Child with a Disability, Appeal No. 04-059; Application of a Child with a Disability, Appeal No. 02-009; Application of the Bd. of Educ., Appeal No. 01-014).  Given the fact that respondent is represented by counsel, has been given notice of its error twice, and has had at least two opportunities to submit a verified Answer with correspondence to this office yet has still failed to either address or correct it, I decline to accept respondent's Answer and cross-appeal. 

 

            Petitioners raise several issues regarding the appropriateness of the CSE's declassification of their son. A board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (M.S. v. Bd. of Educ., 231 F.3d 96, 102 [2d Cir. 2000], cert. denied, 532 U.S. 942 [2001]; Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 122 [2d Cir. 1998]; Application of a Child with a Disability, Appeal No. 02-028; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). In order to meet its burden, a board of education must show (a) that it complied with the procedural requirements set forth in the Individuals with Disabilities Education Act (IDEA) and (b) that the IEP that its CSE developed for the student is reasonably calculated to confer educational benefits to the student (Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]; M.S., 231 F.3d at 102; Application of the Bd. of Educ., Appeal No. 04-031).  If a procedural violation has occurred, relief is warranted only if the violation affected the student's right to a free appropriate public education (FAPE) (J.D. v. Pawlett Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]), e.g., resulted in the loss of educational opportunity (Evans v. Bd. of Educ., 930 F. Supp.83, 93-94 [S.D.N.Y. 1996]), compromised the development of an appropriate IEP in a way that deprived the student of educational benefits under that IEP (Arlington Cent. Sch. Dist. v. D.K., 2002 WL31521158 [S.D.N.Y. Nov. 14, 2002]), or seriously infringed on the parents' opportunity to participate in the IEP formulation process (see W.A. v. Pascarella, 153 F. Supp.2d 144, 153 [D. Conn. 2001]; Brier v. Fair Haven Grade Sch. Dist, 948 F. Supp. 1242, 1255 [D. Vt. 1996]).

 

            Respondent bears the burden of establishing the appropriateness of the CSE's recommendation that a child not be classified as a child with a disability (Application of a Child with a Disability, Appeal No. 04-028; Application of a Child Suspected of Having a Disability, Appeal No. 03-063; Application of a Child Suspected of Having a Disability, Appeal No.01-107; Application of a Child Suspected of Having a Disability, Appeal No. 00-001; Application of a Child with a Disability, Appeal No. 99-049; Application of a Child Suspected of Having a Disability, Appeal No. 94-36; Application of a Child Suspected of Having a Disability, Appeal No. 94-41; Application of a Child Suspected of Having a Disability, Appeal No. 94-42; Application of a Child Suspected of Having a Disability, Appeal No. 93-18).

 

The IDEA requires a board of education to evaluate a child before determining that that child is no longer a child with a disability (20 U.S.C. § 1414[c][5]; 34 C.F.R.§ 300.534 [c][1]; 8 NYCRR 200.4[c][3]).  As part of a reevaluation, the CSE must review existing evaluation data on the child, including evaluations and information provided by the parents of the child, current classroom based assessments and observations, and teacher and related services providers observation (20 U.S.C. § 1414[c][1][A]; 34 C.F.R. § 300.533[a][1]; 8 NYCRR 200.4[b][5][i]; see also 8 NYCRR 200.4[b][4]).  On the basis of that review and input from the child’s parents, the CSE must identify what, if any, additional data are needed to determine whether the child continues to have such disability, the present levels of performance and educational needs of the child, and whether the child continues to need special education and related services (20 U.S.C. § 1414 [c][1][B]; 34 C.F.R. § 300.533[a][2]; 8 NYCRR 200.4[b][5][ii]).  If the CSE determines that no additional data are needed to determine whether the child continues to be a child with a disability, it shall notify the child’s parents of that determination and the reasons for such determination, and also must inform the parents of their right to request an assessment to determine whether the child continues to be a child with a disability (20 U.S.C.§ 1414 [c][4][A]; 34 C.F.R. § 300.533[d]; 8 NYCRR 200.4[b][5][iv]; see also 8 NYCRR 200.5[a][5][i]).  A group of qualified professionals and the parent of the child must determine whether the child continues to be a child with a disability eligible for services (20 U.S.C. § 1414[b][4][A]; 34 C.F.R. § 300.534[a][1]; see also 8 NYCRR 200.4[b][5][ii]).  Additionally, once the CSE determines that the student no longer needs special education services, it must consider and include in its recommendation any declassification support services that the student requires prior to placing the student in a full-time regular education program (8 NYCRR 200.4 [d][1][iii]; see 8 NYCRR 100.1[q]).

 

            In the instant case, the CSE committed numerous procedural errors in their attempt to declassify petitioners' son, the majority of which involve parental participation provisions.  Congress intended that a key emphasis in the 1997 amendments to the IDEA and implementing regulations was the strengthening of the parents' role in their child's education and an expansion of the opportunities for parents and key public agency staff to work in new partnerships at the state and local levels (H.R. Rep. 105-095, p. 82 [1997]; 34 C.F.R. Part 300, Notice of Interpretation, Appendix A, Section II; see, e.g., 34 C.F.R. § 300.501 [parent participation in meetings and all placement decisions]; § 300.533[a][1] [parent as part of team in determining additional data in reevaluations and declassifications]; § 300.534[a][1] [parent must be included in group that makes eligibility determinations]).  To enable parents to be effective participants, prior to any CSE meeting, the parent must be given sufficient notice of the "purpose, time, and location of the meeting" (34 C.F.R. § 300.345[b][1][i]; 8 NYCRR 200.5[C][2][i]). Details of the notice can be either verbal or written (see Parent Participation, 64 Fed. Reg. at 12587 [Mar. 12, 1997]).  Parents' concerns and the information they provide about their children must be considered whenever developing or reviewing the child's educational program (see 34 C.F.R. Part 300, Appendix A, Notice of Interpretation, Section II).  The Notice of Interpretation to these 1997 Amendments to the federal regulations concerning parental participation instruct that:

 

The parents of a child with a disability are expected to be equal participants along with school personnel, in developing, reviewing, and revising the IEP for their child.  This is an active role in which the parents (1) provide critical information regarding the strengths of their child and express their concerns for enhancing the education of their child; (2) participate in the discussions about the child's need for special education and related services,…and (3) join with the other participants in deciding ….what services the agency will provide to the child.

 

(34 C.F.R. Part 300, Appendix A, Notice of Interpretation, Question 5).

 

            In addition, the U.S. Department of Education's official commentary to the federal regulations on parental participation provide that "to the extent that preliminary information is available in the agency that may affect discussions and decisions at the [CSE] meeting related to their child's IEP, it is expected that the information would be provided to the parents sufficiently in advance of the meeting so that they can participate meaningfully in those discussions and decisions on an equal footing with other members of the IEP team" (Parent Participation, 64 Fed. Reg. at 12587 [Mar. 12, 1997]).  These parental participation procedures take on a heightened importance when making the determination to end all services and declassify a student.

 

            In the instant case, petitioners were told that the meeting was to be an 'annual review' to discuss what would be included in the student's program next year and what technology devices might be added; the parent came prepared to discuss these issues (Tr. pp. 773, 1076; see also Parent Ex. EE; Tr. pp. 1118, 1076-77, 1105).  A review of the record reveals that the CSE chair testified that the school members of the committee believed that the student did not meet the legal criterion for classification when they initially classified him (Tr. pp. 58, 75-78, 81-82, 83-84, 145-46; see also pp. 238, 248; Parent Ex. B), and, unbeknownst to the parents, from as early as March 2003 the district had begun collecting data to use for declassification purposes (see Parent Exs. DD, N, U, M; see also Parent Exs. O, P, Q, R, S, T, V).  After a request for consent to do a full educational evaluation and speech evaluation was sent to the parent in March 2003, the parent met with the superintendent on several occasions to inquire as to the purpose of such evaluations, and voiced to him her impression that the upcoming CSE meeting's focus was solely to discuss new assistive technology devices and implementation issues (Tr. pp. 770-71, 773, 1076; see also Parent Ex. EE).  The superintendent did not inform the parent of the reason why the tests were requested, but instead simply agreed with her that they would not do the requested evaluations and would only do the ATE (Tr. pp. 1118, 1076-77, 1105).  At the same time, both the student's resource room teacher and reading specialist were compiling reports recommending declassification (see Parent Exs. U, M).  The student's reading teacher testified that, prior to the CSE meeting, she might have had contact with the student's parents, but that she never discussed with the parents or the student the results of her March 17, 2003 report or that she was going to recommend that the student be declassified (Tr. pp. 458-60).  Teachers' written comments were gathered, and the district scheduled a CSE meeting at the end of that month, before the ATE was even begun (see Parent Ex. L).  None of these reports were shared with the student's parents prior to the meeting, with the exception of the ATE, which the parents received the day before the meeting (Tr. pp. 771-72; see Tr. p. 458). 

 

            This is not a case where the parents were aware that the district had been considering declassifying the student for a long period of time, nor is it a case where the procedural violations that occurred failed to amount to a serious infringement on the parents' ability to participate in the IEP formulation process (see Application of a Child with a Disability, Appeal No. 04-066).  To the contrary, in the instant case, by the mother's own uncontroverted testimony, she did not know that declassification was the purpose of the meeting until the CSE chair announced it, "seven-eighths of the way" through the meeting (Tr. pp. 1078-79, 1107).  In a prior decision that involved an improper declassification determination, it was noted, albeit in dicta, that there was nothing in the district's notice to the parent that it was declassifying the student (see Application of the Bd. of Educ., Appeal No. 04-015).  Other jurisdictions have found declassifications improper where the parent was not informed that declassification was one of the main purposes of the meeting (see Cape Henlopen Sch. Dist., 36 IDELR 26 [SEA DE 2001] [declassification improper where parents were not informed that action would be considered at the CSE meeting]; In re Student with a Disability, 27 IDELR 935 [SEA IN 1998] [declassification improper when parents were told the purpose was a manifestation meeting; parents could not adequately prepare for meeting]; In re Amanda S., 27 IDELR 698 [Unreported, N.D. Iowa, 1998] [change of placement improper where parents were told purpose of meeting was confined to current placement issues]; Allamakee Community Sch. Dist., 24 IDELR 516 [SEA IA 1996]; but cf. Scituate Sch. Comm. v. Robert B., 620 D.Supp. 1224 [D.R.I. 1985], aff'd 795 F.2d 77 [1st Cir. 1986] [table opinion]). Parents cannot properly prepare or participate if they are not adequately informed of the purpose of the CSE meeting.  Petitioners' actions in the instant case suggest that it is likely they would have immediately obtained an IEE of their son prior to the meeting had they known the CSE was considering declassifying him; in fact, the record shows that they did this once they learned that was the CSE's intention (see Dist. Ex. 2); but by then it was too late, the CSE had already made its determination (see Parent Ex. Z).  The record indicates that, despite frequent contact by the parent with the superintendent, the student's teachers, and the CSE office during the months prior to the meeting, while several of the school members of the CSE were aware that the main purpose of the meeting was to consider declassifying the student, no one informed the parent.  In the instant case, where the record demonstrates that the primary purpose of the CSE meeting was to consider declassification, the failure to inform the parents of that purpose before the meeting constituted a serious due process violation (34 C.F.R. § 300.345[b][1][i]; 8 NYCRR 200.5[c][2][i]).  Such defective notice infringed on petitioners' ability to effectively participate in the CSE meeting in violation of state and federal regulations.  

 

            In addition to the meeting notice requirements, prior to declassifying a student the IDEA requires that the CSE must also do a full reevaluation (20 U.S.C. § 1414[c][5]; 34 C.F.R. § 300.534[c][1]; 8 NYCRR 200.4[c][3]), and on the basis of that review, with input from the parent, identify what if any additional data is necessary (20 U.S.C. § 1414[c][1][B]; 34 C.F.R. § 300.533[a][2]; 8 NYCRR 200.4[b][5][ii]). The regulations require that the CSE must review parent evaluations and other information provided by the parent when reaching a determination concerning the student's continued classification (20 U.S.C. § 1414[b][2][A]; 34 C.F.R. § 300.533[a][1][i]; 8 NYCRR 200.4[b][5][i]).  If it is determined that no additional data is necessary, the CSE is required by regulation to notify the parent of that determination, and inform the parent of their right to request an additional assessment to determine if their child continues to be classifiable as a child with a disability (20 U.S.C. § 1414[c][4][A]; 34 C.F.R. § 300.533[d][1]; 8 NYCRR 200.4[b][5][iv]).

 

            In the instant case, the CSE apparently initially thought that an educational evaluation and a speech-language evaluation were necessary (see Parent Ex. DD), but when the parent questioned the purpose of the evaluations, rather than explain the purpose and take reasonable steps to obtain consent as required by regulation (34 C.F.R. § 300.505[c]), or pursue consent for the evaluations via a due process hearing (34 C.F.R. § 300.505[b]), the CSE decided, without input from the parents, that no additional data was needed for their decision.  There is no documentation in the record demonstrating that petitioners were notified of the CSE determination that no additional data was needed prior to the declassification, or that they were advised of their right to request an assessment, as required under the IDEA. Failure to notify parents that no additional data is necessary and failure to inform parents of their right to seek an additional evaluation prior to declassification can invalidate a declassification determination by a CSE (see Application of the Bd. of Educ., Appeal No. 97-90; Application of the Bd. of Educ., Appeal No. 99-49).  In addition, none of the documents listed on the "Declassification Document" or referred to in the CSE chair's testimony surrounding the CSE meeting, include a review of any of the IEEs obtained by the parent as required by regulation (see Parent Ex. Z; Tr. p. 121).  These numerous procedural violations in the parental participation regulations concerning the declassification process combined to result in a serious infringement upon the parents' right to participate in the formulation of their son's educational program, making the declassification a denial of a FAPE.

 

Some additional issues in the CSE's declassification process require brief comment.  First, the CSE listed on the Declassification Document the same district educational evaluation as a basis to declassify petitioners' son that it had listed the previous year on the student's IEP as a basis for its decision to classify petitioners' son (Parent Ex. 2; see Parent Exs. Z, J).  The CSE chair testified at the hearing that she realized that the CSE was supposed to do an educational evaluation before declassifying the student, and that it had not (Tr. pp. 163-65).  Under the circumstances present herein, the CSE's failure to perform a new educational evaluation to assess the student's present levels of performance and their decision to instead rely primarily on anecdotal teacher reports before declassifying the student was improper (see Application of a Child with a Disability, Appeal No. 04-028).  It may be that the student could have been appropriately placed in the general education environment with or without supports; however, the district failed to demonstrate that it properly assessed the student's continued areas of weakness.  The only additional assessment tool that was given to the student was the resource room teacher's informally devised 20-word exercise, from which she concluded that the student did not have a reading disability.  As noted previously, the resource room teacher was not certified in reading, nor was she the student's reading teacher.  Such a non-standardized and informal assessment standing alone lacked the indicia of reliability and validity required by the regulations; especially, as in this case, as it was the sole new evaluative test performed prior to the student's declassification (see generally 20 U.S.C. § 1414[b][2]; 34 C.F.R. § 300.532; 8 NYCRR 200.4[b][6]).  In the present case, the record suggests that there was insufficient information to accurately assess the student's then current needs and to make a determination that the student did not need special education services (see Application of a Child with a Disability, Appeal No. 04-028).  Similarly, it is unexplained why the notes of the May 2, 2003 CSE meeting indicate that consultant teacher services were to be provided as part of the student's declassification support services (Parent Ex. Y); however, these services were dropped from the final declassification document (Parent Ex. Z).  It is not possible to determine from the record whether or not such services continued to be required, or to what extent and duration (see 8 NYCRR 200.4[d][1][iii]; 8 NYCRR 100.1[q]).  Lastly, the parent's uncontroverted testimony that the school psychologist not only did not make a report to the CSE, but also left halfway through the CSE meeting along with several other members of the CSE is also particularly disturbing (Tr. pp. 780-81, 1079-80).  For all of the foregoing reasons, the hearing officer's decision will be annulled, and the case will be remanded to the CSE to reconvene and determine, after proper evaluations and with full parental participation and input, and in compliance with all state and federal regulations, whether or not the student continues to be eligible for services as a child with a disability under the IDEA.

 

            As to petitioners' request for reimbursement for tutoring services, the record is devoid of any evidence of such services, including who provided the services, in what frequency and duration, for what area of purported weakness, and whether or not such services met the student's needs.  Under the circumstances, there is no basis in the record upon which to award reimbursement for the alleged tutoring services (see Application of the Bd. of Educ., Appeal No. 99-58).

 

            I have considered petitioners' remaining contentions and I find them to be without merit.

 

 

            THE APPEAL IS SUSTAINED IN PART.

 

            THE CROSS-APPEAL IS DISMISSED.

 

            IT IS ORDERED that the hearing officer's decision is annulled to the extent that it found that the CSE properly declassified the student; and  

           

            IT IS FURTHER ORDERED that the matter is remanded to respondent's CSE to conduct a reevaluation of the student, including a consideration of any and all independent educational evaluations provided by the parent, with full parental participation and in compliance with all state and federal regulations, to determine whether the student should continue to be classified as a student with a disability.

 

 

Dated:

Albany, New York

 

__________________________

 

November 23, 2004

 

PAUL F. KELLY

STATE REVIEW OFFICER

 

 

 

1  The record does not indicate if her call was returned.

 

2 Hearing officers are required by regulation to "attach to the decision a list identifying each exhibit admitted into evidence.  Such list shall identify each exhibit by date, number of pages and exhibit number or letter" (8 NYCRR 200.5[i][4][v]).  I note in the instant case the hearing officer failed to do this; I caution him to follow all applicable regulations regarding impartial hearing officers' decisions in the future.