The State Education Department
State Review Officer
Application of a CHILD SUSPECTED OF HAVING 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 Maine-Endwell Central School District
Law Office of Andrew K. Cuddy, attorney for petitioners, Kyle M. Costello, Esq., of counsel
Hogan, Sarzynski, Lynch, Surowka & DeWind, LLP, attorney for respondent, Edward J. Sarzynski, Esq., of counsel
Petitioners appeal from the decision of an impartial hearing officer, which determined that respondent did not violate its "child find" obligations under the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482).1 The appeal must be dismissed.
At the commencement of the impartial hearing on April 26, 2006, the child was seven years old and attending first grade at respondent's elementary school (Tr. p. 13).
The child first entered respondent's elementary school for kindergarten in the 2004-05 school year (Tr. pp. 13, 48). The record reflects that the child attended afternoon classes at Head Start during the 2003-04 school year (Dist. Ex. 8). The Head Start classroom contained 18 children, including six children with special needs, and was staffed with four teachers (id.). The Head Start Lead Teacher reported that the enriched classroom offered many learning tools and opportunities for the child to participate in small group activities, such as cutting, lacing, and writing (see id.). She noted that the child often chose to use the computer during free play, and he had "well advanced" large motor skills (Dist. Ex. 8 at p. 1). During the 2003-04 school year, the child underwent screening for color blindness due to concerns that he did not know his colors (id.). He passed the test and learned all of his colors, except brown, by the end of the year (id.). The teacher also reported, however, that the child exhibited "no interest in learning numbers, letters, or even writing his name" and while he had the opportunity to learn some academics, he "always chose more active play rather than sitting at a table with learning games or manipulatives" (Dist. Ex. 8 at p. 1).
During the 2003-04 school year at Head Start, the child underwent an early screening profile, which yielded cognitive scores within normal limits and above age expected levels in fine and gross motor skills (id.). The teacher noted that the child followed rules and routines, and when the teacher and parents completed the "Summary of Achievement" at the Kindergarten Transition, they noted "no parent and teacher concerns and no special needs" (Dist. Ex. 8 at p. 1).
As an initial measure used by respondent with respect to its "child find" obligation, respondent's director of pupil personnel services testified that the district mailed "census cards" annually at the conclusion of each school year to all district residents, which provides contact information for parents who suspect that their child may have a disability (Tr. p. 40). Respondent's district also relied upon either "formal" or "informal" agreements with pre-schools and Head Starts in the area to provide referrals (Tr. p. 40). In the instant case, the record indicates that although respondent's mailing list included petitioners, petitioners did not return the "census card" at the end of the 2003-04 school year (just prior to the child entering school) or at the conclusion of the 2004-05 school year (Tr. pp. 40-42; Dist. Ex. 70 at pp. 1-2).
On July 1, 2004, respondent proceeded to the next step as part of its ongoing "child find" obligation, and conducted a "school age children" kindergarten screening for all potential kindergarteners, including petitioners' son (Tr. pp. 40, 44; Dist. Ex. 3 at p. 1). Respondent's director of pupil personnel services described the prekindergarten screening as the following: "where a multi-disciplinary team meets with a child and parent as the child participates in educational activities and observes the child to see if anything seems to be of concern" (Tr. p. 40; Dist. Ex. 3 at pp. 1-5).
Respondent's assessment team used the "language accomplishment profile" (LAP-D) to screen many domains, such as "fine motor, writing, fine motor manipulation, cognitive counting, language naming, language cognitive and gross motor behavior" (Tr. pp. 201, 204; see Dist. Ex. 3). According to the assessment team's notes on the scoring sheet, the child exhibited extremely slow cutting skills, was unable to copy letters, had difficulty counting, and could not recognize differences among pictures (Tr. pp. 44-45; Dist. Ex. 3 at pp. 1-2, 4-5). The child scored 12 out of 17 on the LAP-D, and as a result, the assessment team recommended the child attend respondent's "early kindergarten classroom," which is a classroom for "developmentally young" children, as opposed to regular kindergarten for the 2004-05 school year (Tr. pp. 44, 45; Dist. Ex. 3 at p. 3). Generally, respondent's assessment team determined a child as "ready" for a regular kindergarten classroom if the child scored between 15 and 17 on the LAP-D (Tr. p. 208).
In addition to the concerns stated above, the record documents that the child displayed other "developmentally young characteristics" at the screening that led to the recommendation for placement in respondent's early kindergarten, such as difficulty in concentrating on "school-related tasks for a sustained period of time or with any depth," and "concern about his pre-school readiness knowledge" (Tr. pp. 46-47). Respondent's early kindergarten classroom provided education for children with shorter attention spans or shorter tolerance for sustained activity by changing activities more frequently; incorporating cuing and more prompting into the curriculum; utilizing an additional classroom aide at times; more repetition of concepts to address the children's slower ability to process and absorb information; focusing more attention on peer social skill development; and providing children with an introduction to the social milieu of a school classroom (taking turns, waiting in line, raising your hand) (Tr. pp. 47-48). Petitioners declined this recommendation for placement in the early kindergarten program and placed their son in a regular kindergarten classroom for the 2004-05 school year (Tr. p. 48).
After the child entered kindergarten, respondent began to address the concerns that arose as a result of the kindergarten screening process and as a result of his kindergarten teacher's observed concerns (Tr. pp. 48-49). The child's kindergarten teacher testified that within the first four to five weeks of school, she observed the child having difficulties with focus and ability to attend to tasks, and that he seemed withdrawn from activities (Tr. pp. 218-20).
On October 1, 2004, the child's kindergarten teacher met with petitioners to discuss some of her concerns regarding the child being unfocused and easily distracted during group instruction, his requiring prompts to refocus, his touching other students, and his lack of interest in learning (Dist. Ex. 11 at p. 2). Respondent's Child Study Team (CST) met to discuss the teacher's concerns and recommended that the child receive occupational therapy (OT), that the teacher document his behaviors, and if necessary, implement a behavioral plan (Dist. Ex. 11 at p. 3).
Petitioners consented to an OT evaluation for weak fine motor skills (Dist. Ex. 7). As result of the evaluation, respondent initiated OT, one time per week, 30 minutes per session; under the general education interventions referred to as educationally related support services (ERSS) (Tr. p. 49; Dist. Ex. 6 at pp. 1-4; Dist. Ex. 7 at pp. 1-2). The child did not require a classification to receive OT services through the ERSS (Tr. pp. 48-49).
Respondent conducted a functional behavioral assessment (FBA) on or about November 1, 2004, to address concerns observed by his teacher regarding the child's friction with peers in more unstructured settings outside the classroom and to help the child sustain his attention to classroom activities (Tr. pp. 49-50, 84; see Dist. Ex. 5). Respondent's school psychologist developed a behavioral intervention plan (BIP) in conjunction with the child's classroom teacher and/or other service providers to address the following targeted behavior goals: (1) the child will maintain "his attention during an activity with no more than two prompts at least 85 percent of the time," and (2) the child will "keep his hands to himself and be aware of others' personal space at least 80 percent of the time" (Tr. p. 50; Dist. Ex. 4 at p. 1). Petitioners were aware of both the FBA and the BIP (Tr. pp. 50-51).
After parent/teacher conferences in November 2004, petitioners requested that respondent refer their son to respondent's Committee on Special Education (CSE) (Tr. p. 51). Pursuant to petitioners' request, respondent's employee made the referral by letter dated December 10, 2004 (Tr. p. 51; Dist. Ex. 11).
Respondent then sent a packet of information, by letter dated December 15, 2004, regarding consent for evaluations and attachments describing what evaluations may be conducted as part of the initial referral process, as well as a copy of procedural safeguards (Tr. pp. 53-56; see Dist. Exs. 12, 15, 53). Petitioners initially declined to consent to the evaluations, but following respondent's further explanation of the CSE process by letter dated January 5, 2005, petitioners consented to the evaluations (Tr. pp. 56-57; Dist. Exs. 14, 17, 20). By letter dated December 15, 2004, respondent notified petitioners of the CSE meeting scheduled for January 19, 2005 (Dist. Ex. 13).
On January 19, 2005, respondent's CSE convened, with petitioners and their advocate in attendance, to review the evaluations, including the psychological report, the speech language evaluation, the occupational therapy evaluation, the school nurse report, and to discuss the child's kindergarten experience, to date, including the kindergarten screening results, the child's individual characteristics, and the progress made by the child, both academically and socially (Tr. pp. 57-59; Dist. Exs. 6, 16, 18, 23; see Dist. Ex. 21). The CSE meeting notes indicated that although the general education teacher did not attend, petitioners agreed to review the reports and to table the meeting with "no action taken" (Dist. Ex. 21 at p. 1).
The CSE notes document that the OT evaluation report indicated improvements in the child's cutting ability, but that his attention was still a concern (id.). The CSE recommended continuing the child's OT services for the remainder of the year as part of the general education interventions of ERSS (id.).
The CSE reviewed the psychological report and the results of the psychological testing, which respondent's school psychologist conducted in January 2005 (Dist. Ex. 23). Initially, respondent's school psychologist became involved with the child due to his kindergarten teacher's concern about some of his behaviors early in the 2004-05 school year (Tr. p. 168; see Dist. Ex. 11 at p. 3). As a result of the CST meeting in October 2004, she conducted the FBA and formulated the child's BIP; she also made the initial referral to respondent's CSE (Tr. pp. 168-69; Dist. Exs. 23, 49). The school psychologist participated in the child's CSE meetings throughout 2004-05, continued to monitor and review the child's case, re-evaluated child in June 2005 with additional assessments, and met with respondent's director of pupil personnel services, petitioners, respondent's principal, and petitioners' private evaluator at the end of June 2005 (Tr. pp. 168-69; Dist. Exs. 23, 49).
With respect to the psychological testing, respondent administered the Wechsler Intelligence Scale for Children-Fourth Edition (WISC-IV), which yielded the following standard scores (SS): verbal comprehension, SS 89 (23rd percentile); perceptual reasoning, SS 84 (14th percentile); working memory, SS 74 (4th percentile); processing speed, SS 88 (21st percentile); and full scale IQ, SS 80 (9th percentile) (Dist. Ex. 23 at p. 2). In addition to administering the WISC-IV, respondent's school psychologist observed the child in the classroom and spoke with the child's teachers (Tr. p. 170). A special education teacher at school administered the Young Children's Achievement Test (YCAT) to the child (id.; Dist. Ex. 23 at p. 2).
Based upon the WISC-IV results, respondent's school psychologist concluded that the child's cognitive ability ranged between the "low end of average to significantly below average" (Dist. Ex. 23 at p. 2). She indicated that the child's full scale IQ score of 80 may not accurately reflect his overall ability, because one low composite score significantly affected the full scale score (see id.). She opined that the although the child's working memory score suggested he may have difficulty retaining information while working with it, the child's inability to understand verbal directions also affected the score (see Dist. Ex. 23 at p. 3).
The child's YCAT scores were noted to demonstrate academic achievement within the average range, and "higher than what would be expected of him based on his cognitive ability" (Dist. Ex. 23 at p. 3). The child's reading and math scores were below average, but not significantly discrepant with the child's cognitive ability, and it was noted that this suggested that the child did not have a learning disability present at that time (see id.). The school psychologist testified that the child "was actually over achieving in the areas of writing and spoken language and his general information about the world" and although he was underperforming "academically with the classroom and on some components of the achievement test, it was right where I would expect him to be based on his IQ score" (Tr. pp. 171-72; see Dist. Ex. 23). In general, the school psychologist noted that the child's areas of academic concern fell "at an age equivalent [of] about one year below" the child's age, but that it was "consistent with his cognitive ability and the classroom benchmarks being seen in the classroom" (Dist. Ex. 23 at p. 3). The school psychologist concluded that the scores supported a recommendation for an additional year of kindergarten to prevent the child from becoming frustrated (see Dist. Ex. 23 at pp. 3-4). Her other recommendations included to increase communication between the school and home, to continue to implement and adapt the child's BIP, to read to the child in school and at home, to use flashcards for increased letter and number recognition, and to continue to monitor the child's progress (Dist. Ex. 23 at pp. 3-4).
The CSE also discussed the child's speech language evaluation report, which noted that the child's speech sound articulation skills, as well as his receptive and expressive skills, were all within the average range for the child's chronological age (Dist. Ex. 21; Dist. Ex. 16 at p. 1). Respondent's speech language therapist performed the child's kindergarten screening for speech language development skills using the Fluharty "pre-school speech and language screening test" in June 2004 (Tr. pp. 198-99, 202-03; Dist. Ex. 3). In December 2004 and January 2005, the speech language therapist evaluated the child's articulation, receptive language, expressive language, and auditory comprehension of language (Tr. pp. 200-01; Dist. Ex. 16 at pp. 1-2; Dist. Ex. 54 at pp. 3-4). All of his skills were within normal limits (Tr. p. 201). The therapist concluded that the child did not require speech language services (Dist. Ex. 16 at p. 1).
The CSE considered the evaluations and reports, discussed the child's developmentally young characteristics, and analyzed his eligibility for services under the IDEA and Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. § 794) (Tr. p. 59). Then, near the conclusion of the meeting, petitioners gave respondent a copy of a private evaluation report, noting that the child had been diagnosed with an attention deficit hyperactivity disorder (ADHD), inattentive type, with symptoms of oppositionality and anxiety (Tr. pp. 59-60, 98; see Dist. Ex. 28 at p. 10). As noted previously, the CSE tabled the meeting (see Dist. Ex. 21). Respondent's director of pupil personnel services testified that the CSE needed additional time to process the private evaluation report and perhaps contact the doctor who prepared the report; thus, the CSE did not classify the child or develop an individualized education program (IEP), or section 504 plan at that time (Tr. p. 60; see Dist. Ex. 21). Respondent did, however, continue to provide OT services under the general education interventions of ERSS following the January 19, 2005 CSE meeting (Tr. p. 62). Petitioners did not submit a bill to respondent to request payment for the private evaluation (Tr. p. 61).
Respondent's CSE reconvened on February 11, 2005 (Dist. Exs. 22, 24, 26). At that meeting, the CSE discussed the child's progress; petitioners' perception of their child's progress; homework completed at home; and primarily, the results of the private evaluation and recommendations contained in the report, including nutrition recommendations (Tr. p. 63; see Dist. Exs. 26, 28). The CSE noted improvements in the child's behavior, as well as improvements in his academic performance in pre-reading skills and reading skills (Tr. pp. 105-06; Dist. Ex. 26). The CSE notes documented success with the system used within the child's classroom to bring him back on task (Dist. Ex. 26). The private evaluator's report indicated that the child was not taking medication for his ADHD, and that he was currently eating a high protein diet (id.). The CSE again considered the child's eligibility for services under the IDEA and section 504, but determined it was not appropriate to classify the child under either statute and thus, the child would continue to receive general education interventions of ERSS (Tr. pp. 64-66; see Dist. Ex. 26). The school psychologist testified that after considering the testing, evaluations, and the private evaluation report regarding the child's diagnosis of ADHD, the CSE determined that although the child had a medical diagnosis, it "was not adversely impacting his education" (Tr. p. 173). In a conversation she had with the private evaluator at some time after the January 19, 2005 CSE meeting, the private evaluator agreed that respondent was currently meeting the child's needs with the behavior plan within the general education setting (Tr. pp. 174, 176).
Respondent's director of pupil personnel services explained in her testimony that the child has been making progress in pre-reading and pre-math schools with general education support services and was not in need, at that time, of an IEP or section 504 plan (Tr. p. 66).
As a result of the improvements noted in the child's behavior, respondent implemented a revised BIP on February 11, 2005, which included only one goal: the child will maintain his attention during activities (Tr. p. 106; compare Dist. Ex. 4, with, Dist. Ex. 25).
By letter dated February 25, 2005, respondent advised petitioners of the CSE's determination to not classify the child as a student with a disability because the testing and evaluations supported the conclusion that the child did not have "a disability that adversely affects his educational performance" (Dist. Ex. 27). By letter received by respondent on March 9, 2005, petitioners requested an impartial hearing, indicating that their son "needed a 504 plan or IEP in order to let him focus in school" (Dist. Ex. 31 at p. 1). Respondent immediately invited petitioners to participate in another CSE meeting to be held on March 18, 2005 (Dist. Ex. 29).
According to the March 18, 2005 CSE meeting notes, the CSE discussed a number of issues (see Dist. Ex. 44 at pp. 1-2). Petitioners requested that respondent provide the child with 1:1 attention and personal tutoring every day for 60 minutes (Dist. Ex. 44 at p. 1). The CSE advised petitioners that 1:1 tutoring in school was not an option, that the child was developmentally young, and that the child should be retained in kindergarten for another year (Tr. pp. 73-75; Dist. Ex. 44 at pp. 1-2). Petitioners rejected respondent's suggestions, including that the child was developmentally young (id.). At the conclusion of the meeting, the CSE determined that the child did not have a disability and therefore, the CSE did not classify the child (Dist. Ex. 44 at p. 2). The principal gave petitioners a letter at the meeting, recommending that the child be retained in kindergarten during the 2005-06 school year (id.). By letter dated March 18, 2005, petitioners withdrew the child from respondent's school and indicated their intent to home school him for the remainder of the 2004-05 school year (Dist. Ex. 32; Parent Exs. 1, 9-13). The letter requested a continuation of the child's OT services (Dist. Ex. 32).
By letter dated March 22, 2005, an impartial hearing officer was appointed (Dist. Ex. 33). By letter dated April 15, 2005 respondent advised petitioners of their determination regarding the March 18, 2005 CSE meeting to not classify the child as a student with a disability because he did not "have a disability that adversely affects his educational performance" (Dist. Ex. 43).
The parties successfully mediated the dispute and formalized a mediation agreement; the impartial hearing officer dismissed petitioners' request for an impartial hearing without prejudice (Tr. pp. 77-78; see Dist. Exs. 33-37, 39-41, 45-47). Respondent's director of pupil personnel services testified that during the May 2005 mediation process, she first met petitioners' private evaluator (Tr. p. 68). Prior to that meeting, she was aware that other district representatives had met with, spoken with, and exchanged information with the private evaluator (Tr. p. 67). Her conversations with the private evaluator indicated that he did not recommend classification of the child at that time, and further, that he supported respondent "providing services not under the auspices of the CSE [sic] or 504" (Tr. pp. 68-69). The school psychologist also testified that at the June meeting, the private evaluator noted that he "needed to treat [the child's] attention before [respondent] could possibly address [the child's] educational needs" (Tr. p. 175). She understood that the private evaluator continued to remain satisfied and in agreement with respondent's actions to address the child's needs in the general education setting (id.).
According to the mediation agreement, respondent agreed to test the child's IQ and achievement, to meet with petitioners to discuss the results, and to allow petitioners to reschedule an impartial hearing if requested (Dist. Ex. 46 at p. 2).
To comply with the agreement, respondent's school psychologist administered the Kaufman Brief Intelligence Test (KBIT) on June 15, 2005, which yielded the following scores: vocabulary, SS 117 (87th percentile); matrices, SS 105 (58th percentile); and KBIT composite, SS 112 (79th percentile) (Dist. Ex. 49 at p. 5). The school psychologist re-administered the YCAT, which yielded the following scores: reading, SS 84 (14th percentile); mathematics, SS 86 (17th percentile); and writing, SS 97 (42nd percentile) (id.). In addition, the school psychologist administered a second achievement test, the Wechsler Individual Achievement Test--II (WIAT-II), which yielded the following results: word reading, SS 92 (30th percentile); numerical operations, SS 84 (14th percentile); math reasoning, SS 79 (8th percentile); math composite, SS 80 (9th percentile); and spelling, SS 88 (21st percentile) (Dist. Ex. 49 at p. 6).
The school psychologist concluded that, overall, the KBIT scores indicated that the child's cognitive ability was in the high end of average (Dist. Ex. 49 at p. 5). Based upon the achievement tests, the school psychologist noted that the child scored within the average range for writing, but that he scored below average in reading and math (Dist. Ex. 49 at p. 6). She also noted that the YCAT results showed some growth since the January 2005 testing, and that the WIAT-II results demonstrated that the child made progress during the past six months, but that he appeared to be at a level "slightly below" what was expected for his age group (id.). The school psychologist recommended benchmarking the child on tasks that other kindergarteners used to better assess the child within his peer group at school (id.; Tr. pp. 70-71, 79-80). Petitioners met with respondent on or about June 22, 2005 to discuss the results of the psychological testing (Dist. Ex. 48). Respondent scheduled the benchmarking to occur on August 30, 2005 with the special education teacher (Dist. Ex. 50). Respondent described "benchmarking" as a "curriculum based assessment" developed by the district to demonstrate "some basic objectives that they feel a child at a certain ages should know" within their district (Tr. p. 143).
Petitioners ultimately rejected respondent's recommendation to place their son in kindergarten for another year, and instead, placed him in respondent's first grade class for 2005-06 (Dist. Ex. 51). Respondent's principal advised petitioners that the CST would continue to monitor their child's progress, and if necessary, would discuss with them his potential need to repeat first grade if the child showed signs of difficulty (id.). Respondent reminded petitioners that the teachers who evaluated the benchmarking results did not recommend placing the child in first grade for the 2005-06 school year (id.).
When the child began first grade in September 2005, the first grade teacher testified that she observed the child having difficulties, such as transitioning, attending to activities, being easily distracted, and requiring a lot of encouragement and refocusing (Tr. pp. 242-43; see Parent Ex. 6). As a result, the first grade teacher requested that the school psychologist observe the child in class (Tr. p. 143). The school psychologist, who began work in respondent's school in September 2005, testified that the first grade teacher reported gaps in the child's pre-reading and pre-writing skills (id.). Based upon this information, she observed the child in the classroom and participated in an October 11, 2005 meeting with petitioners, as detailed herein (id.).
In the meantime, respondent's reading specialist began working with the child on October 4, 2005, under respondent's general education interventions and ERSS (Tr. pp. 267, 273-75; see Parent Ex. 7). She testified that the child participated in small group instruction (two to three children), five out of six days, for 30 minutes each session (Tr. p. 275). The child needed support in reading and writing, spelling, spacing between words, and punctuation (Tr. pp. 275-76). At the time of the impartial hearing, the reading specialist testified that currently, the child read independently at an "end of kindergarten level," which the district referred to as an "Emergent two level" (Tr. p. 278). In October, when she began working with the child, he was not yet an Emergent level and he had gaps in both his pre-emergent and emergent skills and abilities (Tr. pp. 278-79). She opined that the child is making very slow and steady progress and that his difficulties stemmed from his "developmental youngness" (Tr. pp. 279-80).
In addition to the reading services, respondent allowed the child to utilize the "blue room" at school, which provided extra attention to a child by giving 1:1 interaction between a child and a child associate (Tr. p. 258). The "blue room" could be used for a variety of reasons, such as a child feeling uncomfortable, a child losing a family member, or a child not feeling good about him or herself (Tr. p. 258). The first grade teacher testified that the child used the "blue room" one time per six-day cycle, for 30 minutes per session (Tr. pp. 258-59).
On October 11, 2005, the child's first grade teacher, the school psychologist, respondent's principal, the occupational therapist, petitioners, and petitioners' advocate convened for a meeting (Tr. p. 144). The first grade teacher had prepared notes in anticipation of the meeting regarding her concerns, noting the child's inability to keep up with the classroom pace, that he required constant prompting, and that his behaviors indicated he was not developmentally ready to "handle the responsibilities and expectations of first grade" (Tr. pp. 245-46; Parent Ex. 2). The principal memorialized the concerns discussed at the meeting in a letter sent to petitioners, dated October 11, 2005 (Dist. Ex. 52). In the letter, the principal indicated, among other things, that respondent would implement a daily homework log/communication log, that respondent would continue to monitor the child, and that petitioners should not hesitate to inform respondent if they suspected the child had a disability (id.; Parent Ex. 15).
Respondent's CST met on November 2, 2005, to discuss the impact of the informal general education interventions in place for the child (Tr. pp. 148-49). The CST consisted of respondent's speech language therapist, school psychologist, social worker, the special education teacher for the first grade level, and the child's regular education first grade teacher (Tr. p. 149). The team discussed child's strengths, needs, what interventions appeared to work, and what the next step should be (id.). Based upon their discussions, the team noted that the child made inconsistent progress, and they wanted more information (id.).
At a November 7, 2005 parent/teacher conference with petitioners, petitioners' advocate, respondent's director of pupil personnel services, the child's first grade teacher, and the child's occupational therapist, petitioners raised a concern regarding the child's vision (Tr. pp. 149-50). Respondent requested consent to communicate with the child's private vision evaluator because petitioners had already had the child's vision evaluated, but had not produced a copy of the report (id.). Petitioners agreed to the request (id.).
The implementation of a section 504 plan was also discussed at the parent/teacher conference, but the participants at the conference believed they needed more information before developing and implementing any type of plan since the child was now older, the child's vision needed to be explored, and the updated OT evaluation yielded new information (Tr. pp. 151-53). Specifically, the participants wanted more information about the child's learning style to assure the proper fit between interventions and the child's needs (id.).
The school psychologist referred the child to respondent's CSE on November 7, 2005 (Tr. pp. 79-80, 143; Dist. Ex. 54). By letter dated November 8, 2005, respondent requested permission to evaluate the child and attached descriptions of evaluations that may be used, as well as a copy of procedural safeguards (Tr. p. 80; Dist. Ex. 53). When respondent did not receive written consent from petitioners, respondent sent a follow-up letter, dated November 29, 2005, noting that the evaluation process could not begin until the school received signed consent forms (Dist. Ex. 55). Petitioners declined to consent to evaluations and instead, demanded an impartial hearing by letter dated March 6, 2006 (Tr. p. 80; Dist. Ex. 1). By letter dated March 9, 2006, respondent sent petitioners a due process complaint notice with instructions (Dist. Ex. 57). The parties waived the resolution session (Dist. Exs. 60-63).
The impartial hearing occurred on April 26 and 27, 2006 (Tr. p. 1). Respondent presented its case first, calling respondent's director of pupil personnel services, the school psychologist during the child's 2004-05 school year, the school psychologist during the child's 2005-06 school year, and the speech language therapist (Tr. pp. 36-216). Respondent also submitted documentary evidence (Dist. Exs. 1-73). Petitioners presented six witnesses, including the child's kindergarten and first grade teachers, the child's reading specialist, the child's occupational therapists during the 2004-05 and 2005-06 school years, and the principal (Tr. pp. 217-314). Petitioners also submitted documentary evidence (Parent Exs. 1-22).
The impartial hearing officer rendered his decision on July 10, 2006, finding that the record did not support petitioners' claim that respondent violated its "child find" obligations, but awarding petitioners reimbursement for the costs of the private evaluation which diagnosed the child with ADHD (IHO Decision, pp. 16-17, 20-22). The impartial hearing officer also concluded that the procedural violations raised by petitioners could not support a claim that respondent failed to provide the child with a free appropriate public education (FAPE), because petitioners did not show that their son should be classified pursuant to the IDEA (IHO Decision, p. 18). The impartial hearing officer also made a determination that the record did not support petitioners' allegations that respondent did not provide appropriate accommodations for the child pursuant to section 504 (IHO Decision, pp. 22-24).
On appeal, petitioners allege that the impartial hearing officer erred in holding that respondent did not violate its "child find" obligations under the IDEA and in finding that although respondent committed procedural violations, that these procedural violations did not constitute a denial of a FAPE. Petitioners also assert that the impartial hearing officer failed to address the issue of whether the child was denied a FAPE when respondent did not continue to provide OT services while the child was home schooled for the remainder of the 2004-05 school year.
Respondent asserts that the impartial hearing officer's decision is properly supported by the record and that petitioners' appeal should be dismissed in its entirety.
One of the main purposes of the IDEA is to ensure that students with disabilities have available to them a FAPE (20 U.S.C. § 1400[d][A]; Schaffer v. Weast, 126 S. Ct. 528, 531 ; see Bd. of Educ. v. Rowley, 458 S. Ct. 176, 179-81, 200-01 ; Frank G. v. Bd. of Educ., 459 F.3d 356 [2d. Cir. July 27, 2006]). A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written individualized education program (IEP) (20 U.S.C. § 1401[D]; 34 C.F.R. § 300.13; see 20 U.S.C. § 1414[d]; 34 C.F.R. § 300.347). The "core of the statute" is the collaborative process between parents and schools, primarily through the IEP process (see Schaffer, 126 S. Ct. at 532).
To meet this goal, the "child find" provisions of the IDEA place an affirmative duty on state and local educational agencies to identify, locate, and evaluate all children with disabilities residing in the state and that a "practical method is developed and implemented to determine which children with disabilities are currently receiving needed special education and related services" (20 U.S.C. § 1412[a][A]; 34 C.F.R. § 300.125[a][i]; 8 NYCRR 200.2[a]; New Paltz Cent. Sch. Dist. v. St. Pierre, 307 F. Supp. 2d 394, 400 n.13 [N.D.N.Y. 2004]; Application of a Child with a Disability, Appeal No. 06-073; Application of a Child with A Disability, Appeal No 04-054; Application of a Child with a Disability, Appeal No. 93-41). The purpose behind the child find provisions is to locate children with disabilities who are eligible for special education services who might otherwise go undetected (Handberry v. Thompson, 436 F.3d 52, 65 [2d Cir. 2006]). In order to accomplish this, school districts are required to have an effective screening mechanism and procedures in place that will enable them to find such children (id.; Application of a Child with a Disability, Appeal No. 05-131; Application of a Child with a Disability, Appeal No. 04-054; Application of a Child with a Disability, Appeal No. 03-008; Application of a Child Suspected of Having a Disability, Appeal No. 01-082; Application of a Child with a Disability, Appeal No. 93-41). The "child find" duty requires referral for an evaluation when the district "has reason to suspect a disability and reason to suspect that special education services may be needed to address that disability" (Dept. of Educ. v. Cari Rae S., 158 F. Supp. 2d 1190 [D. Haw. 2001]; see 8 NYCRR 200.2, 200.4). The provision applies to children who are suspected of being a student with a disability and in need of special education, even though they are advancing from grade to grade (34 C.F.R. § 300.125[a][ii]; see 8 NYCRR 200.4). A school district must provide a FAPE to students who have met the criteria for identification as students with disabilities under the IDEA and Article 89 of the New York State Education Law (34 C.F.R. § 300.307; 8 NYCRR 200.1[zz]).
After review of the record, I concur with the impartial hearing officer's determinations that the evidence is insufficient to meet petitioners' burden of persuasion and that IHO and independently determine that the IHO Decision be affirmed in its entiretyrRespondent did not violate its "child find" obligation under the IDEA. The record is replete with respondent's efforts to identify, locate, and evaluate petitioners' son as a child suspected of having a disability prior to the child's entry into kindergarten, and during his attendance at school during the 2004-05 and 2005-06 school years. Both respondent and the impartial hearing officer appropriately determined that the child did not meet the definition of a child with a disability or require classification. Petitioners appear to equate the CSE's determination to not classify their son as eligible to receive special education services as proof of a violation of the "child find" provisions under the IDEA; however, the "child find" provisions do not guarantee that a child will be identified as a child with a disability, found eligible for classification, or be found after evaluation to require special education programs and services.
The record demonstrates that respondent mailed "census cards," conducted a pre-kindergarten screening, monitored and observed the child, conducted an FBA, implemented a BIP, conferenced with petitioners, listened to petitioners' concerns, referred the child to the CSE, evaluated the child, and convened CSE meetings to carefully and thoroughly discuss the testing, evaluations, and private report regarding the child and his areas of concern.
In addition, the record amply demonstrates that respondent provided several services to the child under the auspices of general education interventions and ERSS, which supported the child's needs regarding attention, classroom behavior, focus, writing, and reading. The record also documents that the general education interventions allowed the child to improve in all of these areas and that respondent continued to monitor and assess the child and communicate with petitioners.
The record further supports that the CSE carefully considered the private evaluation report that diagnosed the child with ADHD, and that the CSE appropriately determined at that time that the child's medical diagnosis, in conjunction with the results of testing and evaluations, did not constitute a disability that adversely affected the child's educational performance.
As noted previously, the core of the IDEA is the cooperative process between parents and schools, and the record reflects a continuing effort between the parties to communicate and to work collaboratively such that the parties should be able to continue to work together to provide an appropriate educational environment for the child to continue to succeed. I note that the homework log for the 2005-06 school year demonstrates cooperation and effective communication between petitioners and respondent, and further demonstrates the continued monitoring of the child, and the child's ability to complete assignments and to do the work presented to him in a successful manner with the general education interventions provided by respondent.
Because I concur with the impartial hearing officer that respondent did not violate its "child find" obligations under the IDEA and did not err in finding the child ineligible for IDEA services, I need not address petitioners' remaining contentions regarding procedural violations and the allegations of a denial of FAPE.
I have considered petitioners' remaining contentions and find them to be without merit.3,4
THE APPEAL IS DISMISSED.
Albany, New York
September 27, 2006
PAUL F. KELLY
STATE REVIEW OFFICER
1 On December 3, 2004, Congress amended the IDEA, effective July 1, 2005 (see Individuals with Disabilities Education Improvement Act of 2004, Pub. L. No. 108-446, 118 Stat. 2647 ). Since the relevant events at issue in this appeal occurred after the effective date of the 2004 amendments, the new provisions of the IDEA apply and citations contained in this decision are to IDEA 2004, unless otherwise specified.
2 The term "free appropriate public education" means special education and related services that-
(A) have been provided at public expense, under public supervision and direction, and without charge;
(B) meet the standards of the State educational agency;
(C) include an appropriate preschool, elementary, or secondary school education in the State involved; and,
(D) are provided in conformity with the individualized education program required under section 1414(d) of this title.
(20 U.S.C. § 1401).
3 I note that respondent did not appeal the impartial hearing officer's determination that directed respondent to reimburse petitioners for the costs of the private evaluation, which diagnosed the child with ADHD. An impartial hearing officer's decision is final and binding upon both parties unless appealed to the State Review Officer (8 NYCRR 200.5[j][v]; see 20 U.S.C. § 1415[i][A]; 34 CFR § 300.510[a]). Having failed to appeal from that portion of the impartial hearing officer's decision, respondent is bound by that portion of the decision (see Application of a Child with a Disability, Appeal No. 05-124; Application of a Child with a Disability, Appeal No. 00-057; Application of the Bd. of Educ., Appeal No. 98-7).
4 I note further that I do not address the section 504 claims raised in this appeal. New York State Education Law makes no provision for state-level administrative review of hearing officer decisions in section 504 hearings and a State Review Officer does not review section 504 claims (Application of the Bd. of Educ., Appeal No. 05-108; Application of the Bd. of Educ., Appeal No. 05-033; Application of a Child Suspected of Having a Disability, Appeal No. 03-094; Application of a Child with a Disability, Appeal No. 00-051; Application of a Child with a Disability, Appeal No. 00-010; Application of a Child with a Disability, Appeal No. 99-10). Therefore, I have no jurisdiction to review section 504 claims.