05-071

            Petitioners appeal from the June 15, 2005 final decision of an impartial hearing officer which found that a sufficient basis existed for respondent's Committee on Special Education (CSE) to evaluate their son, without their consent, to determine whether he was eligible for special education services.  Petitioners also appeal from the May 12, 2005 interim decision of an impartial hearing officer that denied their motion to dismiss the impartial hearing.  The appeal must be dismissed.¹

            Petitioners' son was 13 years old and receiving home instruction at the time of the impartial hearing on April 25, 2005 (IHO Ex. 13 ¶¶ 5, 13; see 8 NYCRR 100.10).  The student has been receiving home instruction for eight years (Pets.' Mem. in Supp. of Mot. to Dismiss Ex. 1 at p. 1; Ex. 2 at p. 1).

            In October 2004, respondent's director of student support services (director) referred petitioners' son to its CSE for an initial evaluation and determination of eligibility for special education services and programs (see IHO Ex. 13 at Dist. Ex. 2; 8 NYCRR 200.4[a]).²  The student was referred to the CSE because a review of the student's writing samples appeared to indicate significant delays in educational performance; the student's August 2003 language score on the Personalized Achievement Summary System (PASS) test was at the 21st percentile; and because the student's grandparents expressed concerns to respondent's superintendent regarding the student's academic progress (IHO Ex. 13 at Dist. Ex. 2).

            By letter dated October 8, 2004, the director requested petitioners' written consent for the CSE to proceed with an initial evaluation of the student (Pets.' Mem. in Supp. of Mot. to Dismiss Ex. 5; see 8 NYCRR 200.4[b][1], 200.5[b][1]).  The director again contacted petitioners by letter dated October 29, 2004 because parental consent had not been received and informed them that if consent was not received within seven days, the school district would be required to ask an impartial hearing officer to make a decision regarding the need for the evaluation (Pets.' Mem. in Supp. of Mot. to Dismiss Ex. 6).

          Petitioners' counsel, by letter dated November 5, 2004 to respondent's counsel, advised that petitioners were having the student's special education needs met appropriately through home instruction, that petitioners were not requesting any services from respondent, and that they waived the right to a free appropriate public education (FAPE) for their son (Pets.' Mem. in Supp. of Mot. to Dismiss Ex. 8).  By letter dated November 6, 2004, the student's mother advised respondent's director that her son's needs "are being met privately" and that she declined the offered evaluation (Pets.' Mem. in Supp. of Mot. to Dismiss Ex. 7).

           Thereafter, counsel for respondent and counsel for petitioners corresponded by letter and further discussed the matter on the telephone (see Pets.' Mem. in Supp. of Mot. to Dismiss Exs. 9, 10, 11).  Petitioners continued to decline consent to the initial evaluation and respondent initiated an impartial hearing.  An impartial hearing officer was appointed on February 18, 2005, to determine whether an initial evaluation of the student should be conducted without petitioners' consent (see IHO Ex. 13 at Dist. Ex. 1).  

           A prehearing conference was held on March 2, 2005 (see IHO Ex. 3).  At petitioners' request, it was agreed that the impartial hearing officer would first consider a motion to dismiss the requested hearing.  In the event that the motion was denied, the parties agreed that the impartial hearing would take place by the submission of affidavits by respondent, that petitioners would not submit any affidavits or responses to respondent's affidavits, and that the impartial hearing officer would decide the issue of whether the initial evaluation should be conducted without petitioners' consent on the basis of the submitted affidavits. 

           Petitioners served a Motion to Dismiss on March 22, 2005 and oral arguments were held on April 25, 2005.  Petitioners contended that the "child find" provisions of the Individuals with Disabilities Education Act (IDEA)³ may not be used "(to) require unwilling parents to submit their privately educated child, who was being home schooled, to a special-needs evaluation."  Respondent argued that in circumstances where a parent does not consent to an initial evaluation, applicable federal regulations authorized and the then current state regulations required that the matter be resolved by an impartial hearing.  In an interim decision on May 12, 2005, the impartial hearing officer concluded that respondent properly sought an impartial hearing to determine whether an initial evaluation of the student should be conducted without petitioners' consent (IHO Ex. 11).  In particular, the impartial hearing officer concluded that the IDEA did not preclude a school district from initiating an impartial hearing when a parent declined to give consent to an initial evaluation, that state regulation required an impartial hearing be conducted in such a circumstance, that the student's home schooling did not create an exception to the requirement that a hearing take place, and that petitioners' refusal to accept special education services did not make the matter moot (id.).  The impartial hearing officer also concluded that petitioners' claim that respondent's interpretation of the IDEA violated the United States Constitution was outside the scope of his jurisdiction (id.). 

          Subsequent to the May 12, 2005 interim decision, respondent submitted affidavits of its director and its superintendent of schools in support of its request for an order directing that an initial evaluation be conducted without petitioners' consent.  Consistent with the parties' agreement at the prehearing conference, petitioners did not submit initial or responsive affidavits.  By final decision dated June 15, 2005, the impartial hearing officer found that there was an adequate basis to suspect an educational disability that impaired the student's educational performance (IHO Decision, p. 8).  The impartial hearing officer ordered that petitioners make their son available to respondent for the evaluation.  He ordered that an initial evaluation take place within 30 days of the date of his order and that a CSE convene within 60 days of the date of his order and determine if the student is eligible for special education, and if so, make appropriate recommendations for the provision of services (IHO Decision, pp. 8-9).

          Petitioners appeal the impartial hearing officer's May 12, 2005 and June 15, 2005 decisions compelling the evaluation of the student and request that the decisions be reversed and that petitioners be awarded their litigation costs.

          The impartial hearing officer correctly rejected petitioners' contention that their son could not be evaluated pursuant to the IDEA because he is being educated at home.  Respondent's CSE referral indicates that it seeks to evaluate petitioners' son as part of its "responsibility to find and identify students within their district with disabilities" (IHO Ex. 13 at Dist. Ex. 2).  Respondent's action is consistent with, and authorized by, IDEA's "child find" provisions which place an affirmative duty on state and local educational agencies to identify, locate, and evaluate all children with disabilities residing in the state (20 U.S.C. § 1412[a][3][A]; 34 C.F.R. § 300.125[a][1][i]; § 300.300(a)(2); 8 NYCRR 200.2[a]; Handberry v. Thompson, 219 F. Supp. 2d 525, 540 [S.D.N.Y. 2002], aff'd, 436 F.3d 52 [2d Cir. 2006]; 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 Suspected of Having a Disability, Appeal No. 05-040; Application of the Bd. of Educ., Appeal No. 05-027; Application of a Child with a Disability, Appeal No. 04-054; Application of the Bd. of Educ., Appeal No. 04-037).  In particular, "child find" requires states to have "in effect policies and procedures to ensure that…all children with disabilities residing in the State, including children with disabilities attending private schools…who are in need of special education and related services are identified, located, and evaluated…" (20 U.S.C. § 1412[a][3][A]; 34 C.F.R. § 300.125[a][1][i]).  Further, local school districts are required to have in place policies and procedures that are consistent with this (34 C.F.R. § 300.220[a]; Application of the Bd. of Educ., Appeal No. 01-058; Application of a Child with a Disability, Appeal No. 93-41).

          The IDEA provides that a local educational agency may pursue a due process hearing seeking to override a parent's withholding of consent for an initial evaluation (20 U.S.C. § 1414 [a] [1][C][ii]; see 34 C.F.R. § 300.505).⁴  The U.S. Department of Education has indicated that this provision "was enacted to insure that parents' special education choices 'were informed'" (Letter to Manasevit, 41 IDELR 36 [OSEP 2003]).  Also, at the time of the impartial hearing officer's decision, state regulations required local educational agencies to pursue impartial hearings when parents refused consent for an initial evaluation (8 NYCRR 200.5 [b][1][i][c]).⁵  An impartial hearing officer may order that an initial evaluation of a child suspected of having an educational disability take place without parental consent (see Application of a Child Suspected of Having a Disability, Appeal No. 01-021; Application of a Child Suspected of Having a Disability, Appeal No. 96-49; Application of a Child Suspected of Having a Disability, Appeal No. 95-23; Application of a Child Suspected of Having a Disability, Appeal No. 94-10; Application of a Child Suspected of Having a Disability, Appeal No. 93-16).

          I concur with the decision of the impartial hearing officer. Federal law and state regulations allow an educational agency to pursue due process to override a lack of parental consent for an initial evaluation.  The impartial hearing officer properly denied petitioners' May 12, 2005 motion to dismiss and allowed the due process proceeding to continue.  The impartial hearing officer reviewed submissions by respondent pertaining to the student's suspected disability and educational performance (see IHO Ex. 13 with Exs. 1-21).  At the impartial hearing, petitioners did not contest respondent's assertion that there was a need to evaluate the student (see Tr. pp. 20-21) and petitioners do not appeal the impartial hearing officer's June 15, 2005 determination that there was sufficient evidence in the record to support an initial evaluation of the student.  Consequently, that part of the June 15, 2005 decision is final and binding (Application of a Child with a Disability, Appeal No. 04-024; Application of a Child with a Disability, Appeal No. 03-108; Application of a Child with a Disability, Appeal No. 02-100; Application of a Child with a Disability, Appeal No. 02-073).  I do note that review of the record reveals that based upon the evidence before him, the impartial hearing officer determined that there is an adequate basis to suspect that the student may have an educational disability.  The evidence need not demonstrate that the student has a disability, but that there is an adequate basis to suspect the existence of a disability that impairs the student's educational performance (Application of a Child Suspected of Having a Handicapping Condition, Appeal No. 91-29; Application of a Child Suspected of Having a Handicapping Condition, Appeal No. 92-17).  The record also shows that respondent made attempts to provide remediation services, such as access to the district's "Reading Clinic," but it was unable to provide such services due to a lack of response from petitioners (IHO Ex. 13 at Ex. 2; see Application of a Child Suspected of Having a Handicapping Condition, Appeal No. 91-33; Application of a Child Suspected of Having a Handicapping Condition, Appeal No. 92-17; Application of a Child Suspected of Having a Disability, Appeal No. 94-1).

          Upon review of the hearing record, I concur with the impartial hearing officer's determination that there is an adequate basis to suspect that the student may have an educational disability.  The record contains quarterly and annual progress reports from the 2002-03, 2003-04 and 2004-05 school years, when the student was in grades five through seven (IHO Ex. 13).  These reports are, as noted by the impartial hearing officer, "brief and cryptic" (IHO decision p. 4), offering little information regarding the academic levels at which the student was performing during that time.

          Only one set of standardized test results, PASS scores from June 2003, are included in the record.  These scores indicate that the student's performance in reading was at the 71st percentile (IHO Ex. 13 at Dist. Ex. 15).  The student had completed fourth grade at the time the PASS was administered.  On July 14th, 2003, his mother reported that the student was "beginning to read independently" (IHO Ex. 13 at p. 16), and in April 2003 she reported that he was "doing phonics" (IHO Ex. 13 at Dist. Ex. 17).  The plan she had submitted on August 15, 2002 for the 2002-03 school year indicated that the student would receive reading instruction using AlphaPhonics (IHO Ex. 13 at Dist. Ex. 20).  The August 15 plan and subsequent progress reports indicate that during his fifth grade year the student was receiving instruction in phonics fundamentals using a primer level text and had only begun to read independently, which is markedly inconsistent with his PASS reading score at the 71st percentile at the end of that school year.

          A review of the student's performance and progress in math suggests that the student has made limited progress.  In August 2002, his mother reported that he would be using the "Saxon Math series" in fifth grade during the 2002-03 school year (IHO Ex. 13 at Dist. Ex. 20).  His mother did not specify which grade level in the series she intended to use.  In January 2003, she reported that he "will be starting the Saxon 54" but again failed to specify the grade level within this series (IHO Ex. 13 at Dist. Ex. 18).  In April 2003, she noted that he was "looking forward to moving into the Saxon series" (IHO Ex. 13 at Dist. Ex. 17).  In January, 2005, when the student was in seventh grade, his mother reported that her son was "not using the Saxon Math yet" (IHO Ex. 13 at Dist. Ex. 6).  

         While none of these reports indicate the math level at which the student was to be using in the program his mother had selected, her description of his skills suggests that, through fifth, sixth and seventh grades, the student was struggling with math at approximately the third to fourth grade level or below.  In her October 15, 2002 report at the end of the student's first quarter of fifth grade, the student's mother described her son as "getting pretty good at multiplication" (IHO Ex. 13 at Dist. Ex. 19).  No specific reference to math skills is included in subsequent reports until June 28, 2004, at the end of sixth grade, when the student's mother reported that her son was "multiplying and dividing" and could "add and subtract with regrouping easily" (IHO Ex. 13 at Dist. Ex. 10).  A final progress report dated June 29, 2004, notes that at the end of sixth grade, the student had learned to "tell time to the minute" (IHO Ex. 13 at Dist. Ex. 9).  The progress report also noted that the student "has worked with" money and fractions, but does not indicate the level of mastery the student had achieved for these two fundamental skills (id.).  Seven months later, in a January 13, 2005 quarterly progress report for the student's seventh grade year, his mother indicated that her son was "working with" addition and subtraction with regrouping, multiplication, telling time and fractions, but offers no insight into whether he was continuing to learn math fundamentals or expanding on existing skills within these areas to raise his math abilities to a level more consistent with seventh grade work (IHO Ex. 13 at Dist. Ex. 9).

          Petitioners argue that the U.S. Department of Education's commentary to proposed regulations implementing IDEA 2004 would remove any authority of a board of education to request an impartial hearing in circumstances where the parent of a home schooled student declined to provide consent for it to conduct an initial evaluation (see Subpart D – Evaluations, Eligibility Determinations, IEPs, and Educational Placements, 70 Fed. Reg. 35,798-99; 35,861-62 [June 21, 2005]).  I find that the commentary and proposed regulatory provision have  no affect on this case.  Respondent correctly points out that the proposed regulations are at this point still only proposed regulations and therefore have no legal effect.

          I note that the Eighth Circuit Court of Appeals has recently concluded that the child find provisions of the IDEA do not authorize a local educational agency to pursue an initial evaluation of a student where the parents refuse consent, privately educate the student, and expressly waive all benefits under the IDEA and has held that under such circumstances a local educational agency may not pursue an initial evaluation of a student (see Fitzgerald v. Camdenton R-III School Dist., 439 F.3d 773 [8th Cir. 2006]).  However, an opinion by that Court is not binding and does not control here (see Nordson Corp. v. Plaza Packaging Corp., 2005 WL 1813023 at *8 n.14 [S.D.N.Y. 2005]; Winkler v. Metropolitan Insurance Company, 340 F. Supp. 2d 411, 413 n.2 [S.D.N.Y. 2004]).  Moreover, in light of my conclusions above, I do not find the Fitzgerald opinion persuasive.

            I now turn to petitioners' claims relating to the United States Constitution and their contention that certain IDEA provisions are unconstitutional per se or as applied in this case.  Petitioners' constitutional questions are beyond the scope of this proceeding and I will not decide them here (Application of a Child with a Disability, Appeal No. 02-016).  I thus concur with the impartial hearing officer in declining to address these issues (IHO Decision, p. 4). 

            I have reviewed petitioners' remaining contentions including their claim for the costs of litigating this action and I find them to be without merit.⁶  In light of my determination herein, there is no need to address respondent's procedural concern raised on appeal.

THE APPEAL IS DISMISSED.