The State Education Department
State Review Officer

No. 04-083

 

 

 

 

 

 

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 Glen Falls Common School District

 

 

Appearances:

Andrew K. Cuddy, Esq., attorney for petitioner

 

Judge & Duffy, Esqs., attorney for respondent, Monica A. Duffy, Esq., of counsel

 

 

DECISION

            Petitioner appeals from the decision of an impartial hearing officer which determined that respondent’s Committee on Special Education (CSE) properly decided that petitioner’s daughter was no longer eligible for special education.   Petitioner also appeals from that portion of the decision which did not order independent evaluations at the expense of respondent Board of Education of the Glen Falls Common School District  (district).  The appeal must be sustained in part.

 

At the outset, a procedural matter must be addressed. Petitioner requests that I consider an October 14, 2004 report of a psychiatric evaluation of the child that was not submitted at the hearing.  Respondent, in a sur-reply dated November 22, 2004, objects to this submission and asks that I not consider the report because, inter alia, it was created after the impartial hearing. Generally, documentary evidence not presented at a hearing may be considered in an appeal from an impartial hearing officer's decision only if such additional evidence could not have been offered at the time of the hearing and the evidence is necessary in order to render a decision (Application of the Bd. of Educ., Appeal No. 04-068; see generally Application of a Child with a Disability, Appeal No. 04-030; Application of a Child with a Disability, Appeal No. 04-020).  While the document was not available at the time of the hearing, it is of little probative value pertaining to the issues on appeal because it has not been subjected to examination at the hearing below (8 NYCRR 200.5[i][3][xii]).  It is not necessary for my review and, therefore, I will not accept it (Application of the Bd. of Educ., Appeal No. 04-068; Application of a Child with a Disability, Appeal No. 04-031).

 

            When petitioner filed a request for a hearing in May 2004, the child was 10 years old and attending fourth grade (Tr. pp. 56, 57; Parent Ex. A).  She was receiving instruction in a one-to-one (teacher to student ratio) setting outside the general education classroom due to her behavioral problems (Tr. pp. 63, 413-414).  The child has profound hearing loss affecting her left ear, for which she wears a hearing aid, and has been diagnosed with an attention deficit hyperactivity disorder (ADHD) and oppositional defiant disorder (ODD), manifesting itself in disruptive classroom behavior (Tr. pp. 224, 361-364; Dist. Ex. 27; Parent Ex. W-20).  It was noted that the child’s significant emotional problems were “impacting upon her function at school” (Dist. Ex. 27).  Prior to the one-to-one placement, the child had been found no longer ineligible for special education at a February 9, 2004 CSE meeting and a March 3, 2004 CSE meeting.

 

Prior to the 2003-04 school year, the child had been educated at Kensington Road Elementary School (Kensington) in the Glen Falls City School District.  The child had been eligible for special education, having been classified as other health impaired (Parent Exs. C-4, C-5, C-6).  She had individualized education programs (IEPs) for the 2001-02, 2002-03, and 2003-04 school years at Kensington, where the behavior plan that was in place met with some success (Parent Exs. D-1, W-20).  The child transferred from the Glen Falls City District to the Glen Falls Common School District in September 2003, which transfer was presumably the result of the family’s relocation (Parent Ex. S).  A September 14, 2003 social history form completed by petitioner indicated that the child “does not handle change well” and that she was having particular difficulty with changing schools (id.).

 

At a September 18, 2003 CSE meeting, it was decided that the recommendations of the Glen Fall City School District would be implemented and that the child would be placed in regular education classes with counseling as a related service (Dist. Ex. 1; Tr. pp. 38-39).  It is not evident that declassification was discussed at this meeting; rather it appears that the district decided at this time to conduct further evaluations (Dist. Ex. 23).  The IEP generated pursuant to this meeting indicated the following: the child performed at or above grade level; she had “difficulty with change and with owning negative choices;” she “responds best to routine, needs consistency and firm boundaries;” she needed a “highly structured environment;” and that areas of concern included following directions and motor activity (Dist. Ex. 1).  Additionally, the parent gave consent at this meeting for the district to speak with the child’s personal physician who had been treating the child since at least 1998 for ADHD and oppositional tendencies, and who also happened to be the school physician (Dist. Ex. 23; Tr. p. 96). 

 

A CSE meeting took place on December 18, 2003 and was attended by the CSE chairperson, a special education teacher, a regular education teacher and the audiologist (Dist. Ex. 2).  The parent was not present at this meeting (Tr. pp. 135-136, 149; Dist. Ex. 2).  Results of the audiological testing were reviewed at this meeting (Dist. Ex. 24).  The child was found to have profound hearing loss out of her left ear and a need for preferential seating in the classroom (Parent Exs. M-4, M-5).  Educational achievement testing revealed that the child was performing well above grade level in word recognition, reading comprehension, spelling, numerical operations and math reasoning (Dist. Ex. 24).  The minutes of the December 18, 2003 meeting indicate that it was determined that the child would be reviewed at a January 2004 CSE meeting to “discuss continued classification” (Dist. Ex. 24).  It is not clear from the record that the parent was made aware of the decision to discuss continued classification.   The child’s IEP was modified to reflect that the child should receive preferential seating and that the teacher should check for understanding of auditory information due to hearing impairment but was otherwise unchanged (Dist. Ex. 2).  On January 7, 2004, petitioner was sent the December 18, 2003 IEP along with a statement identifying the special education services to be provided for the 2003-04 school year (Dist. Ex. 8). The January 7, 2004 notice also advised that a meeting was to be conducted in January “to review updated testing” (Dist. Ex. 8).  

 

A CSE meeting was scheduled for February 9, 2004 which the parent was unable to attend (Dist. Ex. 11).  By that time, further evaluations including psycho-educational and social-emotional evaluations (performed by the CSE Chairperson) as well as a psychiatric evaluation were completed (Dist. Ex. 21, 27, 55).  It is clear that whatever nomenclature the district used to describe this meeting, discussions regarding determining the child ineligible for special education transpired at that time (Tr. pp. 269, 370-01; Dist. Ex. 43).  The district maintains either that the February 9, 2004 CSE meeting was cancelled (Tr. 220), that it was a subcommittee meeting (Parent Ex. C-1) and/or that the meeting was “tabled” (Tr. pp. 107, 269) when it became evident that the parent could not attend. 

 

However, although petitioner did not attend the meeting the school psychologist spoke to her by telephone for 45 minutes on February 9, 2004 (Tr. pp. 157, 370-372).  The parent was apparently advised at that time that respondent was considering declassifying the child (Dist. Ex. 43).  It is not clear, however, that the mother was informed that she had certain rights attendant to the district’s intent to declassify her daughter, including the right to an additional assessment.  An IEP, moreover, was in fact generated from this meeting, and it is evident that a meeting did occur and a determination made that the child was ineligible for special education (Parent Ex. C-1).  The February 9, 2004 IEP indicates that the child “does not qualify” for special education services and that her needs “can be met under a 504 plan” (id.) (see Section 504 of the Rehabilitation Act of 1973 (§ 504); 29 U.S.C. §§ 701-796[l] [1998]).

 

The CSE Chairperson sent the parent a memo dated February 10, 2004 which stated that “it is the recommendation of the CSE team that [the child be] declassified as a child with a handicapping condition and instead be recognized as a child with a 504 Plan which can accommodate her hearing loss needs and counseling support for her adjustment issues” (Dist. Ex. 43).   

 

The mother was also sent a notice dated February 23, 2004 inviting her to the CSE meeting scheduled for March 4, 2004.  The notice indicated that the purpose of the meeting was to discuss “program and placement” (Dist. Ex. 12).  Respondent contends that it sent along with the notice a document entitled “New York State Education Department Procedural Safeguards Notice,” a parent response form, and a list of additional parent members (id.; Dist. Ex. 34; Tr. pp. 126-127).  The procedural safeguards notice states that the parent is to be informed of her right to have the school physician in attendance upon a request in writing at least 72 hours before the meeting (Dist. Ex. 34; Tr. pp. 130-131).  The notice also indicated that the parent could request in writing that the additional parent member not participate (id.). 

 

The attendees at the March 4, 2004 meeting included the CSE Chairperson, the school psychologist, a special education teacher, a regular education teacher, the school nurse (who was also the 504 Chairperson) and the parent (Parent Ex. C).  A physical examination of the child was apparently not conducted attendant to this CSE meeting; however, communications between the child’s physician and the examining professionals are referenced in the record (Tr. pp. 108, 350-351; Dist Ex. 27). The school physician was not specifically invited to the meeting, notwithstanding the fact that he was treating the child for ADHD and other conditions and was indeed the doctor who was prescribing her medications (Tr. p. 101).  There was no additional parent member at this CSE meeting.

 

At the March 4, 2004 CSE meeting, it was recommended again that the child be declassified as a child entitled to special education (Parent Ex. C).  On the same date, March 4, 2004, a previously scheduled 504 meeting took place for the child.  At the 504 meeting, the child was found to be eligible for continued counseling one time per week, and for continued preferential seating due to her hearing deficiencies.  Petitioner advised respondent of her dissatisfaction with the declassification decision within one to two weeks of its occurrence by letter and through telephone calls and visits to school personnel  (Dist. Ex. 28; Tr. pp. 61, 111-112).   Shortly after the March 4, 2004 CSE meeting, the child was suspended and placed in the one-to-one instructional setting (Tr. pp. 62-63; Dist. Ex. 28).  On April 15, 2004 the parent made a written request that the child be referred back to a CSE and re-evaluated and also requested that she be evaluated by a neuropsychologist (Dist. Ex. 28).  This was not done, and the parent’s attorney requested an impartial hearing (Parent Ex. A). 

 

The impartial hearing took place over the course of two days on August 3, 2004 and August 4, 2004.  At the hearing, testimony was heard from the CSE Chairperson (who is also the school social worker), as well as a special education teacher, the child’s regular education teacher before she was declassified, the school nurse (who is also the 504 Chairperson), the child’s one-on-one teacher after she was declassified, the school psychologist and the superintendent of the school.  The mother presented evidence largely through a series of letters, documents and other correspondence that were exchanged between her and the school district throughout the duration of the 2003-04 school year  (see Parent Ex. BB).  

 

The impartial hearing officer issued a decision on September 15, 2004 in which he found that “the 504 designation appears to be appropriate,” denied petitioner’s request for compensatory education, determined that petitioner was not entitled to the neuropsychological evaluation, and ordered, inter alia, the following: that a CSE shall conduct evaluations to address the child’s unique needs including a reevaluation by the psychiatrist who previously evaluated the child, as well as a physical evaluation, and any other evaluations deemed necessary, including a neurological examination; that the school physician shall attend the next CSE meeting; that the child’s behavioral intervention plan include all current evaluations and assessments; and that upon completion of the evaluation process the CSE reconvene and make a determination as to the child’s eligibility for special education.

 

On appeal, petitioner asserts, inter alia, that the child was improperly found ineligible for special education services and that respondent should be required to pay for independent neuropsychological and functional behavioral evaluations.

 

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 child is reasonably calculated to confer educational benefits to the child (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 child'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 child 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. 04-081; 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’ observations (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 child no longer needs special education services, it must consider and include in its recommendation any declassification support services that the child requires prior to placing the child in a full-time regular education program (8 NYCRR 200.4 [d][1][iii]; see 8 NYCRR 100.1[q]).

 

In the instant case, respondent made numerous procedural errors in declassifying petitioner's daughter, several of which involve parental participation provisions.  A key provision in the implementing regulations to the IDEA involve strengthening parents' role in their child's education (see 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 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 child.

 

            In the instant case, the child’s mother was unavailable on February 9, 2004, when a CSE meeting was scheduled to take place.  Regardless of the district’s attempt to suggest that what took place on that date was not a CSE meeting, it was a discussion regarding declassification, and declassification was recommended by those in attendance (see Dist. Ex. 43; Parent Ex. C-1; Tr. pp. 107; 180-182).  The school psychologist testified that he reviewed the evaluations with the mother over the phone on February 9, 2004 (Tr. pp. 370-372).  These evaluations reveal that this child’s behavior was negatively impacting upon her educational performance and was at times interfering with the education of others (see Dist. Ex. 27).  The mother was not provided with these evaluations, and so whatever was discussed on the phone on February 9, 2004, was all the information she had.  The school psychologist testified that he advised the parent not to worry, that “protections” were in place for the child even after she were to become a 504 child (Tr. p. 371).  The February 2004 IEP states that the child “does not qualify” for special education.

 

Shortly after February 9, 2004 petitioner received a notice inviting her to the March 4, 2004 CSE meeting regarding “program and placement” for special education  (Dist. Ex. 12).  The January 30, 2004  (Dist. Ex 11) notice did not provide adequate notice as required by the Regulations of the Commissioner of Education for the February 9, 2004 CSE meeting (8 NYCRR 200.1[oo], 200.5 [a][3]. The record indicates that petitioner had no notice that declassification would be discussed, that new evaluations would be reviewed for that purpose, or that declassification might be recommended. Moreover, I concur with the impartial hearing officer that the February 23, 2004 notice (Dist. Ex 12) for the March 4, 2004 CSE meeting was inadequate.

 

It is also apparent that petitioner was not aware of the fact that she was entitled to request an additional assessment.  None of the witnesses who testified on behalf of the district indicated that this option was presented to the parent.  The CSE Chairperson testified that the CSE members believed that the child did not meet the criteria for classification due to her academic abilities and performance, and suggested that they believed as such prior to the February 2004 CSE meeting (Tr. p. 135).  However, much of the correspondence to the parent at that time was by way of a notebook journal with the child’s teacher, which revealed the child’s continued difficulties exhibiting appropriate behavior in school (Dist. Ex. 39).  

 

            This is not a case where the parent was aware that the district was considering declassifying the child 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 parent's ability to participate in the IEP formulation process (see Application of a Child with a Disability, Appeal No. 04-066). To the contrary there were, minimally, mixed messages sent to this parent as to her daughter’s continued eligibility prior to declassification (Dist. Exs. 39, 11, 12, 43).  Previous decisions have emphasized that a parent must be notified that the district is considering declassification, and not at such a time as would prevent the parent from meaningful participation in the decision making process (see Application of a Child with a Disability, Appeal No. 04-081; 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]).

 

A parent cannot properly prepare or participate if they are not adequately informed of the purpose of the CSE meeting.  The record indicates that there was frequent contact by the parent with the child's teachers during the months prior to the February and March 2004 meetings, during which time behavioral problems were frequently noted by the teachers (Dist. Ex. 39).  During this time, it is evident that several of the CSE members were considering declassifying the child, and were evaluating her for that purpose (Tr. p. 135).  No one clearly informed the parent of this prior to the February 9, 2004 meeting which the parent could not attend, and at which the declassification recommendation was made (Dist. Exs. 11, 12, 43; Tr. p. 107).  In the instant case, where the record demonstrates that the primary purpose of the February 9, 2004 and March 4, 2004 CSE meetings was to declassify the child, the failure to clearly inform the parent of that purpose before the meeting dates 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 petitioner's ability to effectively participate in the CSE meeting in violation of state and federal regulations.

 

In addition to the 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 order to make an appropriate recommendation, it is necessary to have adequate and sufficient evaluative information (Application of a Child with a Disability, Appeal No. 02-114; Application of a Child with a Disability, Appeal No. 02-100; Application of a Child with a Disability, Appeal No. 02-044; Application of the Bd. of Educ., Appeal No. 02-008). A board of education must assess a student in all areas related to a suspected disability, and the evaluation must be sufficiently comprehensive to identify all of the student's special education needs (8 NYCRR 200.4[b][6][vii] and [ix]). The evaluative information must be sufficient to ascertain the physical, mental, behavioral, and emotional factors which contribute to the suspected disabilities (8 NYCRR 200.4[b][1][v]), and it should provide information related to enabling the student to participate and progress in the general education curriculum (8 NYCRR 200.4[b][1]). A CSE may direct that additional evaluations or assessments be conducted to appropriately assess the student in all areas related to the suspected disabilities (8 NYCRR 200.4[b][3]).

 

Petitioner’s actions in the instant case strongly suggest that it is likely that she would have requested additional assessment of her daughter prior to the meeting had she known the CSE was going to declassify her and had she known that she had the right to make such a request.  In fact, the record shows that within one to two weeks after the CSE meeting at which her daughter was declassified, the mother placed numerous calls and made repeated visits to the school about her dissatisfaction (Tr. pp. 61, 111-112).   Shortly thereafter the child was suspended and educated in a one-on-one environment (Tr. pp. 62-63).  The parent requested an independent evaluation (Dist. Ex. 28).  By then, however, the CSE had already made its determination to declassify the child (Tr. pp. 61-63).   The district took the position that the mother’s phone requests that began shortly after the declassification were to be treated as an initial referral to the CSE because the child was now officially a 504 child (Tr. pp. 67, 115). 

 

Additionally, regarding the parent’s participation, it is significant that no additional parent member was present at either the February 9, 2004 meeting or the March 3, 2004 meeting which were identified in notices of the meetings (Dist. Exs. 11, 12) as CSE meetings (Parent Exs. C, C-1; Tr. pp. Tr. 143-144) (see Application of a Child with a Disability, Appeal No. 04-075; Application of a Child with a Disability, Appeal No. 02-092).  Failure to have a parent member at a CSE meeting, in the absence of an appropriate waiver, violated New York State law (N.Y. Educ. Law § 4402 [1][b][1][a][viii]; see also 8 NYCRR 200.3 [a][1][viii]).

  

I also concur with the impartial hearing officer’s determination that upon declassifying the child, respondent did not provide appropriate declassification support services as required by state regulations (8 NYCRR 200.4[d][1][i-iii][a][b]).

 

            Finally, it is important to note that the child’s physician was also the school physician.  The district took the position that the parent was informed of her right to invite the school physician to the February 9, 2004 and March 4, 2004 meetings by virtue of the due process notice, included with the invitation, which indicate that upon 72 hours notice, the district will invite the school physician if requested by the parent (Dist. Ex. 34). While providing the due process notice may have been sufficient under ordinary circumstances, I find that in the context of an equivocal notice as to the purpose of the meeting, it was not. The school physician had been instrumental in this child’s care before she transferred into respondent’s district and continued to remain so afterwards (see Parent Exs. M-9, W-20).  It was equally incumbent upon the district to realize the importance of this individual’s presence at the February 9, 2004 and March 4, 2004 meetings as the parent -- perhaps more so as the district clearly knew the significance of the meetings whereas the parent likely did not.  Indeed, the impartial hearing officer noted this, finding that the invitation to the physician under these circumstances should have been in “plain sight” (IHO Decision, p. 11).  It should be noted that the school physician was not supportive of the outcome of the CSE meetings, as he submitted a letter to respondent approximately one month after the CSE meeting requesting that the school implement the behavioral plan adopted by the elementary school from which the child transferred (Parent Ex. W-20).    

 

Based upon the foregoing, I find the procedural inadequacies here were of a number and nature that constituted a denial of FAPE (Evans v. Bd. of Educ., 930 F. Supp. 83, 93 [S.D.N.Y. 1996]; see also J.D. ex rel. J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]).

 

One of the remedies petitioner asks is that independent evaluations be ordered at district expense.  To the extent that the neuropsychologist evaluation appears to have now been secured, upon referral from the child’s physician, the CSE is ordered to consider it at the next meeting and to reimburse petitioner expenses she incurred in procuring it.  Additionally, petitioner asks for an independent functional behavioral assessment at district expense.  I am not, at this time, convinced that this is necessary.  Rather, it appears from the record that the CSE should reconvene, that the opinion of the child’s physician, including on such matters as the propriety of the functional behavioral assessment and the necessity for further evaluations, should be considered in further CSE proceedings, and that the independent evaluation that already has been procured should be considered.  Should the need for further evaluations become evident, the district is reminded to comply with the requirements of 34 C.F.R. § 300.502; 8 NYCRR 200.5[g].         

 

            I have considered petitioner’s remaining contentions and do not make determinations thereon in light of my sustaining in part the appeal on other grounds raised herein.

 

 

 

 

            THE APPEAL IS SUSTAINED IN PART.

           

            IT IS ORDERED that the impartial hearing officer's decision is annulled to the extent that it found that the CSE properly declassified the child and he determined that petitioner was not entitled to the neuropsychological evaluation; and

 

            IT IS FURTHER ORDERED that, upon the submission of proof by petitioner to respondent of the amount of the neuropsychological evaluation, respondent shall reimburse petitioner for such expenditure; and

           

            IT IS FURTHER ORDERED that the matter is remanded to respondent's CSE to conduct a reevaluation of the child, including a consideration of any and all evaluations conducted pursuant to the order of the impartial hearing officer, with full parental participation and in compliance with all state and federal regulations, to determine whether the child should continue to be classified as a child with a disability.

 

           

 

 

Dated:

Albany, New York

 

__________________________

 

December 24, 2004

 

PAUL F. KELLY

STATE REVIEW OFFICER