Application of a CHILD WITH A DISABILITY, by his parent, for review of a determination of a hearing officer relating to the provision of educational services by the New York City Department of Education
Advocates for Children, attorney for petitioner, Cynthia Godsoe, Esq., of counsel
Hon. Michael A. Cardozo, Corporation Counsel, attorney for respondent, Janice Casey Silverberg, Esq., of counsel
Petitioner appeals from that part of the decision of an impartial hearing officer which denied petitioner’s request for an independent educational evaluation (IEE) and 250 hours of tutorial services at the Huntington Learning Center (Huntington). The appeal must be sustained in part.1
At the time of the hearing on February 8, 2005 the student was 15 years old and attending Adlai Stevenson High School for Community Resource and Learning (Stevenson) (Tr. p. 37). He was initially determined eligible for special education services while in early elementary grades and has attended New York City public school programs since the age of five (Tr. p. 65; Parent Ex. M at pp. 12, 13). The student’s current eligibility for special education programs and services as a student with a learning disability (LD) is not in dispute in this proceeding (8 NYCRR 200.1[zz]).
In early March 2004 the student’s educational placement changed from a 15:1 special class program with related services at Stevenson (Parent Ex. L at p. 1; Pet. ¶ 5) to placement at Passages Academy (Passages), a New York City Department of Education program for youth in detention (Tr. p. 18). The student remained at Passages for approximately two weeks until March 24, 2004 (Pet. ¶ 6; Parent Ex. A).
The student then attended Allen Residential Center (Allen) from April 5, 2004 until November 9, 2004 (Parent Ex. H). Allen is a facility operated by the New York State Office of Children and Family Services (OCFS). At the time of the hearing, the student’s most current individualized education program (IEP) had been developed on May 18, 2004 by the Committee on Special Education (CSE) at Allen (Parent Ex. I). The IEP provided for a ninth grade 15:1 general education program with two hours weekly of indirect consultant teacher services and individual counseling one time per week (Parent Ex. H at p. 2, Parent Ex. I at p. 5). The program modifications and accommodations of extended time and reduced number of items in all classes were offered to the student (Parent Ex. I at p. 5). The student also received tutoring on an as needed basis (Tr. p. 47). While at Allen, the student’s grades ranged from a 78 in Math A to a 93 in Career Education (Parent Ex. B). The student was in attendance at Allen until his discharge on November 9, 2004 (Tr. pp. 9-10).
On November 10, 2004 the student's parent met with a New York City Department of Education (DOE) placement supervisor to obtain a placement for her son (Tr. p. 74; Parent Ex. A). The parent was notified later that month that the student could attend a special class with support services at Jane Addams High School for Academics and Careers (Addams) (Parent Ex. G). A letter dated November 23, 2004 notified the parent that Addams could not accept the student because there was no room in the special education classes available at that time (Parent Ex. D). The parent and the student's OCFS aftercare worker enrolled the student in Project Bold while awaiting placement "in an appropriate high school program" (Tr. pp. 78-79; Parent Ex. L at p. 1). Project Bold is a program for students with behavior issues who are returning from an OCFS situation or a suspension from Stevenson (Tr. p. 63). At the hearing the district representative stated that while at Project Bold, the student attended an 8:1:1 class that was considered to be a "collaborative team teaching for all subjects" (Tr. p. 30). The student testified that while at Project Bold he was in a classroom of 10 students and did not receive any "special services" (Tr. p. 48). The student further testified that although he completed coursework in Math, Social Studies and Science, he did not receive any credit for those courses, nor did he receive the instruction that he needed in order to learn (Tr. pp. 48-50).
Respondent offered the student another placement on December 17, 2004, at which time it recommended a return to Stevenson (Tr. pp. 34-35). The record reflects that the student was enrolled at Stevenson on December 17, 2004 and he began attending classes on January 3, 2005 (Tr. pp. 42, 51).
By letter dated December 15, 2004, petitioner requested an impartial hearing, asserting that the student did not receive a free appropriate public education (FAPE) for either the 2003-04 or 2004-05 school years (Parent Ex. L at p. 1). She requested that the district be ordered to provide, inter alia, a procedurally and substantively valid IEP, private evaluations at district expense, an immediate interim placement, and compensatory education services (Parent Ex. L at p. 2).
A hearing was held on February 8, 2005 and the impartial hearing officer issued a decision dated March 3, 2005. At the hearing, respondent's representative indicated that the DOE was "functioning under" the student's May 18, 2004 IEP developed while he attended Allen, which provided for a 15:1 program with 2 hours weekly of indirect consultant teacher services as well as the program modifications/accommodations of extended time and reduced number of items (Tr. p. 31; Parent Ex. I at p. 5, Parent Ex. H at p. 2). Respondent's representative stated she believed that the student's subsequent placement at Stevenson was "very close" to what was recommended in the May 18, 2004 IEP (Tr. p. 30), however, the student testified that his actual placement at Stevenson was in a program consisting of 20 students to one teacher without counseling or special services (Tr. pp. 51-3, 55-6). The student testified that the class at Stevenson was the biggest that he had ever been in, and opined that there were "too many" students there (Tr. pp. 51, 53). The student further testified that at Stevenson it was "hard to learn, because the teachers, they don't pay attention to one student, because there are so many students in one class. So, I'm basically not really learning anything in my school right now" (Tr. p. 58).
The May 18, 2004 IEP also provided that the student receive one individual counseling session per week, and stated that the student "has had speech pathology services in the past" (Parent Ex. I at pp. 1, 5). However, the student stated at the hearing that he did not receive speech-language therapy, counseling or any other services while attending Stevenson (Tr. pp. 52, 55-6). In addition, the student testified that he was not able to attend after school tutoring services offered by Stevenson because he was required to report to an OCFS program everyday after school (Tr. p. 64). The record does not reveal that Stevenson made any arrangements to offer the student tutoring services during the school day to offset his inability to attend after school sessions.
At the hearing, respondent denied that it failed to offer the student a FAPE, but conceded that the student’s May 18, 2004 IEP could not be implemented by respondent as written because respondent’s schools did not have the same class size configuration of fifteen students in a general education classroom as identified on the IEP (Tr. pp. 116-17). Respondent further acknowledged at the hearing, some three months after petitioner sought re-enrollment in respondent’s schools, that the student needed a new IEP and a new assessment (Tr. pp. 117-18). The impartial hearing officer ordered that the matter be remanded to the CSE to conduct new evaluations, including a psychoeducational and speech-language evaluation as well as a social history, in accordance with the schedule agreed to by the parties at the hearing. She further ordered that no later than two weeks after the completion of the evaluations a CSE must convene to consider the evaluation results and make recommendations (IHO Decision, p. 12). The impartial hearing officer also ordered the CSE to determine the amount of services the student required to compensate for the consultant teacher and speech-language services which had not provided since January 3, 2005, and to determine whether an interim service plan (ISP) of home instruction was required (id.). She further ordered that the student be provided related services in accordance with his current IEP or that the CSE issue the parent a related service authorization (RSA), which would allow the parent to secure a provider for the related services at district expense (IHO Decision, p. 13). The impartial hearing officer denied the parent’s request for services at Huntington and an independent evaluation at public expense (id.).
By affidavit of the DOE’s District Representative for Region 2, dated May 5, 2005, respondent asserts that, subsequent to the hearing in this matter, respondent worked closely with petitioner and her advocate to schedule evaluations, provide compensatory services as directed by the impartial hearing officer, and develop an new IEP (Resp. Aff. p. 1). Respondent asserts that petitioner and her son did not keep appointments for educational, psychological, social service, and speech and language assessments scheduled for two days in February after the conclusion of the hearing (id. at p. 2), however, the evaluations were rescheduled and completed at the beginning of March 2005 (id.). Moreover, in compliance with the impartial hearing officer’s order, respondent issued an RSA for 24 speech-language therapy sessions to "compensate" for the time that the student did not receive this service between January 3, 2005 to the date of the evaluation on March 8, 2005 (id. at p. 3). They also issued a "P-3" letter authorizing "compensatory" consultant teacher tutoring services from a DOE contracted provider (id. at p. 4). The student has continued to receive counseling services since he began at Stevenson on January 3, 2005, however, upon review of the student’s psychological evaluation, respondent recommended that he undergo a psychiatric assessment and has attempted to schedule an appointment (id. at pp. 3, 4). Respondent scheduled a CSE meeting for May 31, 2005 (id. at. p. 4). Petitioner has not disputed respondent’s post-hearing assertions contained in the affidavit. In addition, petitioner’s son, as a result of negotiations between the parties after the hearing, is attending an interim 15:1 special education class placement at Stevenson (Pet. ¶ 2; Respondent Declaration, dated May 9, 2005, ¶ 4).
On appeal, petitioner contends the impartial hearing officer erred in denying her request for a district funded independent evaluation and in denying her request for private tutoring services at Huntington for the student.
The purpose behind the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400 - 1487) is to ensure that students with disabilities have available to them a free appropriate public education (FAPE) (20 U.S.C. § 1400[d][A]). A FAPE consists of 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]). The 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 ; Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 122 [2d Cir. 1998]; Application of a Child with a Disability, Appeal No. 04-043).
An appropriate educational program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals and short-term instructional objectives related to those needs, and provides for the use of appropriate special education services (Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). Federal regulation requires that an IEP include a statement of the student's present levels of educational performance, including a description of how the student's disability affects his or her progress in the general curriculum (34 C.F.R. § 300.347[a]; see also 8 NYCRR 200.4[d][i]). School districts may use a variety of assessment techniques such as criterion-referenced tests, standard achievement tests, diagnostic tests, other tests, or any combination thereof to determine the student's present levels of performance and areas of need (34 C.F.R. Part 300, Appendix A, Section 1, Question 1).
In appropriate circumstances, an award of additional services to students who remain eligible to attend school and have been denied appropriate services is proper, if such deprivation of instruction could be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation (Application of a Child with a Disability, Appeal No. 04-054; Application of the Bd. of Educ., Appeal No. 02-047; Application of a Child with a Disability, Appeal No. 02-042; Application of a Child with a Disability, Appeal No. 02-030).
Upon my review of the record relating to respondent’s November 2004 placement offer and the December 17, 2004 placement of the student at Stevenson, I find that the student was not offered an appropriate program and placement upon his return to the New York City public school system, therefore he was denied a FAPE.2 If a child with a disability moves from one public agency to another in the same state, the state and its public agencies have an ongoing responsibility to ensure that a FAPE is made available to that child. The new agency is responsible for ensuring that the child has available special education and related services in conformity with an IEP. The new public agency may meet this responsibility by either adopting the IEP the former public agency developed for the child or by developing a new IEP for the child (34 C.F.R. Part 300, Appendix A, Notice of Interpretation, Question 17). In the circumstances presented here, upon the return of petitioner’s son to the district, respondent did not offer an appropriate available placement, implement the existing May 18, 2004 IEP, secure adequate evaluations, or timely formulate a new appropriate IEP.
The relief ordered by the impartial hearing officer is appropriate, but for her determination regarding the IEE. The impartial hearing officer ordered that the matter be remanded to the CSE to develop a new IEP after conducting new evaluations, including a psychoeducational and speech-language evaluation as well as a social history, to determine the student’s levels of need (IHO Decision, p. 10). With the exception of limited academic achievement assessment data contained in the IEPs, the record does not indicate that the student has had multidisciplinary evaluations conducted in the past three years as required by state regulations (8 NYCRR 200.4[b]).
Petitioner seeks 250 hours of private tutoring services at Huntington to compensate for the student’s denial of a FAPE from November 10, 2004 to February 8, 2005 (Pet. ¶ 77). Based upon the information in the record and the lack of current evaluative data, I cannot conclude that the award of additional services at Huntington sought by petitioner is appropriate. In addition, the managing director of Huntington testified at the hearing that the student had not been evaluated by Huntington staff in order to determine the level of tutoring service he required (Tr. pp. 100-1). She further stated that Huntington staff would benefit from a more thorough, updated evaluation of the student and that all of their instructional decisions would be based on the evaluations conducted during the first session (Tr. p. 102). As the student was not evaluated by Huntington, I cannot determine that 250 hours of services at Huntington is an appropriate award of additional services that would meet the student’s needs. I concur with the impartial hearing officer that it is appropriate to have the CSE recommend appropriate additional services needed after review of the new evaluations.
The impartial hearing officer also denied petitioner’s request for an IEE. Federal and state regulations provide that a parent has the right to an IEE at public expense if the parent disagrees with an evaluation obtained by the school district. If a parent requests an IEE at public expense, the school district must, without unnecessary delay, either ensure an IEE is provided at public expense or initiate an impartial hearing to show that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria. If the impartial hearing officer finds that a school district's evaluation is appropriate, a parent may not obtain an IEE at public expense (34 C.F.R. § 300.502; 8 NYCRR 200.5[g]; Application of the Bd. of Educ., Appeal No. 05-009; Application of a Child with a Disability, Appeal No. 04-082; Application of a Child with a Disability, Appeal No. 04-027). In this case, respondent had not conducted a timely multidisciplinary evaluation of the student as required by state regulations.3 Moreover, petitioner requested the independent evaluation on December 15, 2004 (Tr. p. 144) but respondent failed to initiate a due process hearing to demonstrate the appropriateness of its evaluations. Because respondent failed to either ensure an IEE was provided at district expense or initiate an impartial hearing without unnecessary delay, I find that petitioner is entitled to the psychoeducational IEE she requested at the identified cost (Hyde Park Cent. Sch. Dist. v. Peter C., 1994 WL 67944 [S.D.N.Y.]; Application of a Child with a Disability, Appeal No. 01-089; Application of a Child with a Handicapping Condition, Appeal No. 92-35; Letter to Anonymous, 30 IDELR 481 [OSERS 1998]). Petitioner can determine whether to go forward with such an IEE after reviewing the appropriateness of the new psychoeducational evaluation that respondent asserted was recently conducted.
I have considered petitioner’s remaining contentions and I find them to be without merit.
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that respondent must ensure that an independent psychoeducational evaluation is provided at public expense.
1 Both parties have submitted on appeal documentary evidence and affidavits not made part of the hearing below. 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). In the circumstances presented here, I have considered the additional evidence because neither party objected to their submission and consideration.
2 In addition, the May 18, 2004 IEP developed by Allen that respondent relied upon was deficient for a number of reasons. The record does not reflect that Allen's CSE which developed the IEP recommending a regular education placement for the student included a regular education teacher. The failure to have an appropriate regular education teacher member of the CSE was a procedural violation of the IDEA. Moreover, I find the May 18, 2004 IEP to be substantively inadequate. The IEP was developed without conducting recent multidisciplinary evaluations of the student. Federal and state regulations require that a student with a disability be reevaluated at least once every three years (34 C.F.R. 3000.536[b]; 8 NYCRR 200.4[b]). The record reflects that the student's last multidisciplinary testing was conducted in January 2001 (Parent Ex. M). The only evaluative data contained in the May 18, 2004 IEP indicates two grade equivalent scores for the student in reading and math. Therefore, Allen did not have current evaluative data regarding the student's social history, cognitive or speech-language abilities upon which to base the present levels of performance in the student's IEP (Parent Ex. I at p. 2). Moreover, although the limited academic achievement information in the May 18, 2004 IEP indicated that the student was reading at a fourth grade level, the IEP did not contain a single annual goal or short-term objectives related to reading (Parent Ex. I at pp. 3-4).
3 I remind respondent of its obligation to conduct timely multidisciplinary evaluations of students with disabilities pursuant to 8 NYCRR 200.4[b].