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 Pine Plains Central School District
Linda A. Geraci, Esq., attorney for petitioners
Shaw & Perelson, LLP, attorney for respondent, Garrett L. Silveira, Esq., of counsel
Petitioners appeal from the decision of an impartial hearing officer which ordered respondent to: 1) evaluate their son to determine eligibility for special education programs and services; 2) revise its Academic Intervention Plan (AIP) to allow greater flexibility in referring a student for an evaluation for special education; and 3) reimburse petitioners for the cost of a privately obtained psychological evaluation, and which also determined that respondent did not violate its “child find” obligation during the 2004-05 school year, and lastly, which declined to determine that the student was eligible for special education programs and services. The appeal must be dismissed.
At the time the impartial hearing was held in March and April 2005, the student was 10 years old (Tr. p. 884) and in a fourth grade inclusion class for the 2004-05 school year (Tr. pp. 98-99, 410). The student was receiving services pursuant to an accommodation plan developed pursuant to Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. §§ 701-796[l]) (section 504) (Parent Ex. D). The section 504 plan was developed for the student on December 13, 2004 based on an October 2004 diagnosis by a psychologist associated with the Astor Home for Children that the student had an attention deficit hyperactivity disorder (ADHD) (Parent Exs. D, I). Despite this diagnosis, behavioral observations and test findings resulting from a private psychological evaluation conducted in November 2004 were not consistent with the ADHD diagnosis by the Astor evaluator (Dist. Ex. 32 at p. 15). Behavioral observations during the private psychological evaluation revealed focused attention throughout most of the day with fatigue toward the end of the testing sessions (Dist. Ex. 32 at p. 15). Test findings revealed adequate attention and working memory in the presence of poor processing speed, visual perception and motor development, which likely negatively impacted the student's behavioral functioning in school and home settings (id.). The evaluation indicated that results of the private psychological evaluation in combination with a reported history of writing difficulties supported a diagnosis of dysgraphia, defined as a disorder of written expression. The student's weakest areas involved writing and he experienced difficulty in timed addition and subtraction math fact tasks (Dist. Ex. 32 at p. 2). The record indicates that the student also has difficulty with spelling (Parent Ex. G). His academic strengths were noted to include math and science (id.) According to information gathered from petitioners and teachers, although the student typically received grades in the 80s (Dist. Ex. 21) and 90s (Dist. Exs. 21, 32 at p. 2) and was described as having an enthusiastic attitude toward school, he experienced difficulty in completing homework and had difficulty with transitions, organization, and multistep directions (Dist. Ex. 32 at p. 2). The student is currently a regular education student (Tr. p. 99). The student’s eligibility for special education programs and services and his classification as a student with a disability are in dispute.
On March 1, 2004, during the student’s third grade year, a joint teacher-parent referral was made to a Child Study Team (CST) due to concerns with writing and organizational issues (Parent Ex. B). On May 12, 2004 the CST met and made recommendations that resulted in assessments pertaining to inattentiveness and occupational therapy (Parent Ex. G). The student was evaluated on June 14, 2004 for inattentiveness, which resulted in a subsequent referral for an ADHD evaluation (Dist. Ex. 22). The ADHD evaluation resulted in a diagnosis of ADHD, primarily inattentive type, reported by letter dated October 13, 2004 by a psychologist associated with the Astor Home for Children (Parent Ex. I). The student commenced the fourth grade year in a inclusion class which respondent considered appropriate for the student given additional staffing in the classroom (Tr. p. 669). On October 7, 2004 the CST met and recommended that the student’s writing be assessed (Dist. Ex. 24).
By letter dated October 15, 2004 petitioners requested an “independent evaluation,” a complete neuropsychological evaluation and an assessment by a pediatric neurologist (Dist. Ex. 4). In their letter, petitioners cited the October 13, 2004 letter from the Astor psychologist and highlighted the psychologist’s finding that the student had some impairment in functioning due to ADHD (Parent Ex. I), and also highlighted his recommendation for a “504 plan, medication, and some modifications in school” (Dist. Ex. 4). By letter dated October 18, 2004 respondent’s assistant superintendent informed petitioners that respondent “does not approve independent evaluations of the type you are requesting” (Dist Ex. 5). The assistant superintendent’s letter further noted that a section 504 plan could be developed through a CST and that if “at some point in time, the [student] is referred to the Committee on Special Education there would be an opportunity for you to request an Independent Evaluation if you felt the evaluation was incomplete” (Dist. Ex. 5). The letter also encouraged petitioners to meet with the building principal and the student’s teachers regarding their concerns (id.). On October 28, 2004 the CST met, reviewed the occupational therapy assessment, and determined that classroom strategies and interventions be utilized to address weakness in writing (Tr. pp. 587, 588).
On November 21, 2004 petitioners authorized respondent to discuss with the Astor psychologist his evaluation for the purpose of determining “modifications and strategies” to assist the student (Dist. Ex. 28). On November 22, 2004 a CST met without the parents and developed a “tentative” section 504 plan providing for program and testing modifications (Dist. Ex. 29). On December 13, 2004 a CST met with the student’s mother and developed a section 504 plan, “effective immediately,” which provided for program modifications (allowance for verbal response when appropriate and use of spell checker) and testing modifications (extended time up to 1.5 and separate location) (Dist. Ex. 30). By letter dated January 14, 2005, petitioners requested another section 504 meeting be convened (Dist. Ex. 31) to discuss further “modifications and accommodations” for the classroom and testing based in part on results of a private psychological evaluation (Dist. Ex. 32) which was conducted in November 2003. The private evaluation diagnosed the student as having dysgraphia (Dist. Ex. 1).
On January 27, 2005 a section 504 committee convened, with the student’s mother and her attorney in attendance, and the committee declined to approve the mother’s request for the student’s use of a tape recorder for the fourth grade English/Language Arts (ELA) state assessment (Dist. Ex. 36). The committee did modify the plan because of the student’s weakness in written expression and ADHD to the extent that time to complete tests was increased to double time (id.). The assistant superintendent testified that he attempted to give a Committee on Special Education (CSE) referral and evaluation consent letter to petitioners' attorney after the student's January 27, 2005 section 504 meeting ended (Tr. pp. 125-26). He also testified that petitioners did not take the letter at that time, and that he sent the letter to petitioners on February 7, 2005 but received no reply (Tr. pp. 126-27). The record includes a Request for Due Process form dated February 2, 2005 (Dist. Ex. 2) that was addressed to petitioners, and a Notice of Referral to the CSE and Request for Consent from the assistant superintendent to petitioners dated February 7, 2005 (Dist. Ex. 41), six days after respondent received petitioners' impartial hearing request (Dist. Ex. 1). The enclosures were noted to include the initial evaluation consent form, the parent guide to special education, and the procedural safeguards notice (Dist. Ex. 41 at p. 2).
Petitioners did not request and give consent for an evaluation by a CSE to determine their son’s eligibility for special education services. Instead, by letter dated February 1, 2005, petitioners requested an impartial hearing (Dist. Ex. 1). In the hearing request petitioners asserted that respondent failed to: 1) fulfill its child find obligation; 2) complete mandatory evaluations and otherwise process the October 15, 2004 letter and November 10, 2004 meeting with respondent as referrals for an evaluation and eligibility determination by a CSE for special education programs and services; 3) provide the student with a free appropriate public education (FAPE) for the 2004-05 school year; and 4) abide by the legal requirement to provide an independent evaluation at district expense or to initiate an impartial hearing to prove its evaluations were proper (Dist. Ex. 1 at p. 2). Petitioners requested: 1) classification of the student as other health impaired or as a student with a learning disability; 2) development of an appropriate individualized education program (IEP), including but not limited to testing and program modifications and accommodations (including the use of a tape recorder), implementation of the Handwriting Without Tears program or similar program, spelling instruction using a multisensory approach, instruction in keyboarding, and the use of the computer for completion of in-class assignments; and 3) reimbursement for the cost of the psychological evaluation in the amount of $983.00 (Dist. Ex. 1 at pp. 2-3).
An impartial hearing convened on March 7, 2005 and concluded on April 29, 2005, after five days of hearings. By decision dated June 13, 2005, the impartial hearing officer found that respondent's pre-referral AIP, as implemented in the case, required three months of academic intervention services without a student making progress prior to a referral to a CSE for an initial evaluation. He concluded that this process was “arbitrary” because it established timelines, which “could not always be followed,” and in some instances, might “impede the intent” of the Individuals with Disabilities Education Act (IDEA) (IHO Decision, p. 6). However, he determined that the AIP requirements did not hinder the provision of appropriate programming for the student. The impartial hearing officer stated that it was impossible for him to comprehend petitioners' claim that they were never aware of their right to refer the student to the CSE, given the mother’s testimony about involvement as a volunteer in public education and special education.
The impartial hearing officer found that respondent did not violate child find provisions and did exercise meaningful, professional judgment in providing the student with section 504 accommodations and remedial services in some academic areas, however, he found that the record contained a great deal of evidence indicating a possible disability (IHO Decision, pp. 6-7). He concluded that respondent complied with the procedures required by the IDEA, but that respondent would “need to take into account that the student was very capable and was not performing” as expected (id.). The impartial hearing officer further found that the record did not show a discrepancy of 50 percent or more between expected and actual achievement, to such a degree as would support petitioners' claim that the student was learning disabled (id.). He also found that respondent ignored some obvious warning signs and should have deliberated more carefully upon receipt of petitioners' letter of October 15, 2004 and, therefore, he awarded petitioners reimbursement for the private psychological evaluation services (IHO Decision, pp. 6-7). The impartial hearing officer directed the CSE to convene to determine whether the student was eligible for special education programs and services (IHO Decision, p. 7).
Petitioners appeal those parts of the impartial hearing officer's decision which found that respondent did not violate its child find obligations and which failed to direct respondent to classify the child and develop an appropriate IEP for him. Petitioners request that the State Review Officer: 1) affirm those parts of the impartial hearing officer's decision that award reimbursement for the psychological evaluation and require respondent to revise its AIP; 2) declare that respondent violated its child find obligations; 3) declare that respondent violated its duty to evaluate the student after receiving the October 15, 2004 letter; 4) direct respondent to classify the student as a student with a disability; and 5) direct respondent to develop an appropriate IEP to include, at a minimum, a small group, multisensory spelling program, resource room assistance with writing and note taking, the use of a tape recorder for writing assignments, and the provision of class notes.
Respondent does not cross-appeal but asserts that: 1) the impartial hearing officer properly determined that respondent did not violate its child find obligations and exercised meaningful professional judgment in providing the student with appropriate services pursuant to a section 504 plan and remedial academic services; 2) the mother was not credible regarding her purported lack of knowledge of the ability to make a direct parental referral to the CSE; 3) petitioners' evaluator lacked credibility and her evaluation failed to provide convincing evidence to support petitioners' claims; and 4) insufficient evidence existed to warrant ordering the student be determined eligible for special education services. Respondent seeks dismissal of petitioners' appeal and affirmance of the impartial hearing officer's decision in its entirety.
The purpose of the IDEA is to ensure that children with disabilities are provided a FAPE (20 U.S.C. § 1400[d][A]; see Mrs. W. v. Tirozzi, 832 F.2d 748, 750 [2d Cir. 1987]).1 A FAPE consists of specialized education and related services embodied in an IEP (34 C.F.R. § 300.13). To meet its burden of showing that it had offered to provide a FAPE to a student, the board of education must show (a) that it complied with the procedural requirements set forth in the IDEA, and (b) that the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176, 206, 207 ).
The IDEA's "child find" provision places on school districts an affirmative obligation to identify, locate, and evaluate all disabled youth who reside in the district (see 20 U.S.C. § 1412(a)(3)(A); 34 C.F.R. § 300.125; § 300.300(a)(2); 8 NYCRR 200.2[a]; Application of a Child with a Disability, Appeal No.04-054). A student suspected of having a disability shall be referred in writing to the chairperson of the district's CSE or to the building administrator of the school which the student attends for an individual evaluation and determination of eligibility for special education programs and services (8 NYCRR 200.4[a]; Application of a Child with a Disability, Appeal No. 03-050). A referral may be made by: 1) a student's parent or person in parental relationship; 2) a professional staff member of the school district in which the student resides, or the public or private school the student legally attends; 3) a licensed physician; 4) a judicial officer; 5) the commissioner or designee of a public agency with responsibility for welfare, health or education of children; or 6) for purposes of referring one's self, a student who is over 18 years of age or older, or an emancipated minor, who is eligible to attend the public schools of the district (8 NYCRR 200.4[a]). The regulation does not prescribe the form that a referral by a parent must take, but it does require that it be in writing (Application of a Child Suspected of Having a Disability, Appeal No. 99-69).
The Regulations of the Commissioner of Education require that each board of education establish a plan and policies for implementing school wide approaches and pre-referral interventions in order to remediate a student’s performance prior to referral for special education (8 NYCRR 200.2[b]; see also N.Y. Educ. Law § 4401-a , ).
I have reviewed the hearing record along with petitioners’ claims and arguments on appeal and I find no need to modify the impartial hearing officer’s determinations. I do additionally determine that respondent erred in not providing petitioners notice of due process procedures upon refusing to initiate an evaluation of the student after receipt of the October 15, 2004 letter requesting that evaluations take place (34 C.F.R. § 300. 503[b]; 8 NYCRR 200.5 [a]).
In addition, I agree with the impartial hearing officer's decision to remand this matter to the CSE for a determination of eligibility for special education. Petitioners' attorney revealed in her opening statement that respondent has referred the student to the CSE for an evaluation (Tr. p. 36). As of this date, it is unclear as to whether respondent's CSE has met and has completed its evaluation of the student regarding his eligibility for special education programs and services. Given the circumstances of this case and evidence produced thus far, I concur with the impartial hearing officer that until such time as respondent's CSE has met and has completed its evaluation (see 8 NYCRR 200.4[b]), an appropriate determination regarding classification and an appropriate program cannot be made.
I also note that respondent has not appealed the directive from the impartial hearing officer that it revise its AIP. In complying with this directive, respondent must also ensure that the plan and procedures are effectively communicated to staff.
I have considered petitioners' remaining contentions and I find them to be without merit.
THE APPEAL IS DISMISSED.
1 On December 3, 2004, Congress amended the IDEA, however, the amendments did not take effect until July 1, 2005 (see Individuals with Disabilities Education Improvement Act of 2004 [IDEIA], Pub. L. No. 108-446, 118 Stat. 2647). Citations contained in this decision are to the statute as it existed prior to the 2004 amendments. The relevant events in the instant appeal took place prior to the effective date of the 2004 amendments to the IDEA, therefore, the provisions of the IDEIA do not apply.