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
Ropes & Gray, attorney for petitioner, Richard A. Inz, Esq., of counsel
Hon. Michael A. Cardozo, Corporation Counsel, attorney for respondent, Steven D. Weber, of counsel
Petitioner appeals from the decision of an impartial hearing officer which denied her requests that as compensatory services respondent be ordered to pay for a private instructional skills program for her son at a Lindamood-Bell learning center (Lindamood-Bell) and provide transportation to these services. Petitioner also appeals the decision of the impartial hearing officer denying her requests that respondent conduct an assistive technology evaluation1 and that respondent issue a "Nickerson letter."2 The appeal must be sustained in part.
At the time of the impartial hearing on September 11, 2006, petitioner's son was 14 years old and attending eighth grade at respondent's middle school (Tr. pp. 162-63). The student was classified as a student with a learning disability on January 4, 2006 (Parent Ex. B at p. 1; Dist. Ex. 6 at p. 1). The student's eligibility for special education programs and services as a student with a learning disability is not in dispute in this appeal (see 8 NYCRR 200.1[zz]). Also, in her petition, the student's mother raises no objection to the student's current program.
Petitioner's son reportedly had been experiencing academic difficulties since first grade, including having to repeat first grade (Parent Ex. C at p. 1). However, respondent's social worker characterized the student's academic performance through third grade as appearing to be "mostly satisfactory" (Parent Ex. E at p. 3). Petitioner stated that the student loved school, but began having "a problem" at school during the middle of fourth grade (Tr. p. 162).
On June 3, 2004, at the end of the student's fifth grade year, petitioner requested that respondent's Committee on Special Education (CSE) evaluate her son to determine whether he was eligible to receive special education services (Parent Ex. A at p. 6; Tr. pp. 163-64). On June 24, 2004, petitioner provided respondent with written consent to evaluate her son (Parent Ex. A at p. 5; Tr. p. 165).
By letter dated October 29, 2004, petitioner requested an impartial hearing (Hearing 1) alleging that her son had not been timely evaluated. The impartial hearing officer rendered her decision on January 18, 2005 (Parent Ex. A). The impartial hearing officer determined that the student's initial evaluation was not conducted in a timely manner, and at the time of the December 16, 2004 hearing, the evaluation still had not been completed (id.). The impartial hearing officer declined to order issuance of a Nickerson letter but did order respondent's CSE to "immediately initiate a complete assessment of the [student]" and convene a CSE meeting to develop an appropriate individualized education program (IEP) (Parent Ex. A at p. 7). The impartial hearing officer further ordered that petitioner was entitled to obtain an "independent" evaluation of her son at public expense (id.).
Respondent's representative in the instant case stated that "shortly" after the impartial hearing officer in Hearing 1 rendered her decision, petitioner indicated that she wanted a private evaluation of the student conducted (Tr. pp. 5, 22). Respondent mailed an authorization for the private assessment to petitioner (Tr. pp. 22-23). Subsequently, petitioner notified respondent that she did not receive the authorization for the private assessment, and she requested that she pick up the authorization form from respondent (id.). The hearing record does not reflect whether this occurred. In March 2005, petitioner did contact a private agency to obtain the student's private evaluation (Tr. pp. 195-98, 202). However, the private agency did not conduct the evaluation because petitioner did not have the authorization for the private evaluation (Tr. pp. 195, 197).
In April 2005, respondent provided petitioner with another authorization for a private evaluation (Dist. Ex. 2). At that time, one of respondent's representatives informed her that she could pursue either a private evaluation of the student or have a "special ed evaluation" conducted (Tr. pp. 168-70, 192; see Tr. p. 229). On May 17, 2005, petitioner obtained a private "learning profile" assessment of her son at Lindamood-Bell (Parent Ex. F). Although petitioner was previously provided with authorization to obtain a private evaluation (see Tr. pp. 170-71, 172), the authorization was not used to obtain the May 17, 2005 assessment (Tr. pp. 71, 172; Parent Ex. F). Petitioner stated that the authorization for the private evaluation expired and that she unsuccessfully attempted to obtain another authorization from respondent (Tr. pp. 198-202).
In fall 2005, petitioner met with respondent's assistant principal for special education (assistant principal) regarding her request that the student undergo a CSE evaluation (Tr. pp. 127, 174-75). The meeting resulted in petitioner's request that respondent conduct a CSE "review" of the student as soon as possible, pursuant to the January 2005 order of the impartial hearing officer (Dist. Ex. 3). The parties dispute the date that petitioner requested the fall 2005 CSE evaluation (Tr. pp. 174-75, 177-78; Dist. Ex. 3).
Petitioner again provided written consent for an initial CSE evaluation of the student on November 10, 2005 (Dist. Ex. 5). Also on that day, a social history was conducted with petitioner by respondent's school social worker (Parent Ex. E). The social history revealed that during the previous school year the student had been "jumped" by a number of peers, which resulted in the student having a back injury (Parent Ex. E at p. 3). The social history report indicated that petitioner requested that the student be evaluated to determine if he was eligible for "technology assistance" (Parent Ex. E at p. 4). The report also noted that this evaluation would be pursued if "the team finds it to be warranted" (id.).
On December 23, 2005 and January 3, 2006 respondent's school psychologist completed a psychoeducational evaluation of the student (Parent Exs. C, D). Administration of the Wechsler Intelligence Scale for Children-Fourth Edition (WISC-IV) yielded a verbal comprehension composite index score of 75 (5th percentile, Borderline), a perceptual reasoning composite index score of 67 (1st percentile, Extremely Low), a working memory composite index score of 80 (9th percentile, Low Average), a processing speed composite index score of 75 (5th percentile, Borderline) and a full scale IQ score of 68 (2nd percentile, Extremely Low) (Parent Ex. D at p. 1). The school psychologist stated that the full scale IQ score was not the "best way" of indicating the student's intellectual functioning because the range of his scaled scores was from Extremely Low to Average (Parent Ex. C at p. 4). A significant discrepancy between the student's working memory index score and perceptual reasoning index score was reported (id.). The school psychologist's report indicated that "such characteristics preclude the presence of mental retardation but suggest the profile of a slow learner instead" (id.). Administration of the Woodcock-Johnson III Tests of Achievement yielded an oral language cluster standard score (SS) of 75 (5th percentile), a broad reading cluster SS of 81 (10th percentile) and a broad math cluster SS of 89 (22nd percentile); other cluster standard scores were not reported (Parent Ex. C at pp. 4-5). The school psychologist reported that the student's academic skills were in the range between borderline deficient to average, with a relative strength noted in the area of math and weaknesses in short-term recall and sequencing of verbal directions (Parent Ex. C at p. 5). He opined that the student's perceptual-motor functioning was within the low average to average range (id.). The student's social emotional functioning was assessed by a clinical interview, behavior observations, affect inventory and projective testing (Parent Ex. C at p. 6). Results suggested that the student was a "likeable, well-meaning adolescent" whose cognitive and academic deficits were negatively affected by thoughts and feelings associated with a mildly depressed mood (Parent Ex. C at pp. 6-7). The school psychologist opined that the student attempted to project a self-assured, assertive persona; however, he actually felt vulnerable, confused and angry (Parent Ex. C at p. 6). The school psychologist stated that the student might benefit from a self-contained setting and recommended school-based counseling services (Parent Ex. C at p. 7). He also recommended that petitioner explore "outside" mental health services, and that collaboration between the parties occur to address the student's frequent absences from school (id.).
On January 4, 2006 respondent's CSE convened for an initial review of the student and determined that he was eligible for special education services as a student with a learning disability (Dist. Ex. 6 at pp. 1-2). Petitioner participated by telephone (Tr. pp. 180-81). Petitioner did not provide the results of the May 2005 private Lindamood-Bell assessment of the student to the CSE (Tr. pp. 172-73). The resultant IEP recommended that the student attend a ten month 12:1+1 special class program in a community school and provided annual goals and short-term objectives in the areas of mathematics, reading, and written expression (Dist. Ex. 6 at pp. 1, 6-7). Testing accommodations and one time per week individual counseling services were also recommended (Dist. Ex. 6 at p. 10).
By letter dated June 28, 2006, petitioner requested an impartial hearing for the purpose of obtaining an assistive technology evaluation of her son, a Nickerson letter, an "after-school instructional skills program" at Lindamood-Bell, and transportation to and from home for the instructional skills program (Dist. Ex. 1 at p. 3).
An impartial hearing (Hearing 2) was held on September 11, 2006 and a decision rendered on September 29, 2006. The impartial hearing officer denied petitioner's requests for compensatory relief after concluding that the student was timely evaluated and timely provided an IEP. She determined that subsequent to the Hearing 1 decision petitioner contributed to the delay in the evaluation process by neither going forward with a private evaluation nor advising respondent to proceed with an evaluation. The impartial hearing officer then concluded that the date of the second consent for evaluation, November 10, 2005, was the operative date for determining timeliness of the evaluation and IEP formulation. Utilizing the November 10, 2005 date, she concluded that the evaluation and IEP were timely. 3 She also found that petitioner was not entitled to the remedy of a Nickerson letter (IHO Decision, p. 11).
Petitioner contends on appeal that the impartial hearing officer erred in finding that the student was timely evaluated, in not awarding her son with 240 hours of private tutoring services at Lindamood-Bell as additional services and transportation for these services, in not ordering respondent to provide her with a Nickerson letter, and in not ordering respondent to conduct an assistive technology evaluation of her son.
The central purpose of the IDEA (20 U.S.C. §§ 1400-1482)4 is to ensure that students with disabilities have available to them a free appropriate public education (FAPE)5 (20 U.S.C. § 1400[d][A]; Schaffer v. Weast, 126 S. Ct. 528, 531 ; Bd. of Educ. v. Rowley, 458 U.S. 176, 179-81, 200-01 ; Frank G. v. Bd. of Educ., 459 F.3d 356, 371 [2d Cir. 2006]). A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a written IEP (20 U.S.C. § 1401[D]; 34 C.F.R. § 300.17; see 20 U.S.C. § 1414[d]; 34 C.F.R. §§ 300.22, 320).6 The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][A]; 34 C.F.R. § 300.114[a]; 8 NYCRR 200.6[a]).
A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA (Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]). If a procedural violation has occurred, relief is warranted only if the violation affected the student's right to a FAPE (J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]). Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a child did not receive a FAPE only if the procedural inadequacies (a) impeded the child's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision making process regarding the provision of a FAPE to the child, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][E][ii]; see 8 NYCRR 200.5[j][ii]). Also, an impartial hearing officer is not precluded from ordering a local educational agency to comply with IDEA procedural requirements (20 U.S.C. § 1415[f][E][iii]). An appropriate placement for a student must be identified based upon whether a school can meet the student's needs as identified on the IEP (see 34 C.F.R. § 300.116[b]; 8 NYCRR 200.4[d][ii][a]). The burden of persuasion in an administrative hearing challenging an IEP is on the party seeking relief (see Schaffer, 126 S. Ct. at 537).
When a child suspected of having a disability is referred to a CSE, the CSE must ensure that an individual evaluation of the referred child is performed(Application of a Child Suspected of Having a Disability, Appeal No. 05-047); Application of a Child Suspected of Having a Disability, Appeal No. 04-063; Application of a Child Suspected of Having a Disability, Appeal No. 04-059). A "full and individual" evaluation must be conducted (20 U.S.C. § 1414[a][A]) and must include at least a physical examination, an individual psychological evaluation (unless a school psychologist assesses the child and determines that such an evaluation is unnecessary), a social history, an observation and other appropriate assessments or evaluations as necessary to ascertain the physical, mental, behavioral and emotional factors which contribute to the suspected disability (8 NYCRR 200.4[b]; Application of a Child Suspected of Having a Disability, Appeal No. 05-047; Application of a Child Suspected of Having a Disability, Appeal No. 04-063). The child must be assessed in all areas related to the suspected disability (20 U.S.C. § 1414[b][B]; 8 NYCRR 200.4[b][vii]), including if appropriate health, vision, hearing, social and emotional status, general intelligence, academic performance, communicative status, and motor abilities (8 NYCRR 200.4[b][vii]). The evaluation must be sufficiently comprehensive to identify all of the child's special education needs, whether or not commonly linked to the disability category in which the child has been identified (8 NYCRR 200.4[b][ix]). The initial evaluation to determine if a student is a student with a disability must be completed within 60 days of receiving parental consent for the evaluation unless the parent of the student repeatedly fails or refuses to produce the student for an evaluation (8 NYCRR 200.4[d], 200.4 [b][ii]).
I will first address petitioner's claim for relief pertaining to the time period, from June 24, 2004 to January 18, 2005, that her son was not evaluated prior to the Hearing 1 decision. Petitioner's concerns regarding the period of time from June 24, 2004 to January 18, 2005 were before the impartial hearing officer in Hearing 1. The Hearing 1 impartial hearing officer did conclude that respondent failed to timely evaluate the student and she directed an immediate evaluation of the student, not compensatory services or a Nickerson letter, as relief. Neither party appealed from the impartial hearing officer's decision in Hearing 1. An impartial hearing officer's decision is final and binding upon the parties unless appealed to the State Review Officer (34 C.F.R. § 300.514[a]; 8 NYCRR 200.5[k]). Consequently, the Hearing 1 decision is final and binding (Application of a Child Suspected of Having a Disability, Appeal No. 06-092; 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). The doctrine of res judicata "precludes parties from litigating issues 'that were or could have been raised' in a prior proceeding" (Perez v. Danbury Hosp., 347 F.3d 419, 426 [2d Cir. 2003]; Murphy v. Gallagher, 761 F.2d 878, 879 [2d Cir. 1985]; Application of a Child with a Disability, Appeal No. 05-072; Application of a Child with a Disability, Appeal No. 04-099).
Although the issue of the untimeliness of the evaluation prior to January 18, 2005 has been resolved, the timeliness of the evaluation subsequent to the Hearing 1 decision must be addressed. The Hearing 1 decision ordered respondent's CSE to "immediately initiate a complete assessment of the [student]" and convene a CSE meeting to develop an appropriate IEP (Parent Ex. A at p. 7). The record suggests that the parties interpreted the order differently, with respondent assuming that the order allowed petitioner to make evaluation arrangements at district expense (Tr. pp. 29-30), and with petitioner assuming that respondent would be conducting an evaluation concurrently or instead of a private evaluation (Tr. pp.191-92). Although the Hearing 2 impartial hearing officer concluded that petitioner impeded the evaluation process, I find otherwise. The hearing record does not persuasively show that the student's mother repeatedly failed or refused to produce the student for evaluation by respondent. Rather the record reveals that petitioner understood the Hearing 1 decision to state that respondent's evaluation of her son would take place regardless of any private evaluation (Tr. pp. 191-92). Aside from the decree contained in the Hearing 1 decision, respondent was under an ongoing responsibility under Regulations of the Commissioner of Education to timely evaluate the student (8 NYCRR 200.4 [d]). Under the facts of this case respondent did not do so. Petitioner never withdrew her June 24, 2004 written consent to evaluate her son (Parent Ex. A at p. 3; Tr. p. 165). Although the Hearing 1 decision fashioned relief for the failure to initially evaluate the student, and although that remedy cannot be revisited in the instant case, I do find that the June 24, 2004 parental consent for evaluation remained in force and should have been acted upon subsequent to the Hearing 1 decision regardless of the parallel obligation to implement the impartial hearing officer's decision.
I will now consider the appropriate relief in the instant case. Petitioner contends that her son is entitled to 240 hours of private tutoring at Lindamood-Bell as additional services due to respondent's delay in completing her son's evaluation and finding him eligible for special education services. The Hearing 2 impartial hearing officer determined that petitioner's son was not entitled to compensatory education and further declined to award additional services (IHO Decision, pp. 14-15). Compensatory education is instruction provided to a student after he or she is no longer eligible because of age or graduation to receive instruction. It may be awarded if there has been a gross violation of the IDEA resulting in the denial of, or exclusion from, educational services for a substantial period of time (Mrs. C. v. Wheaton, 916 F.2d 69 [2d Cir. 1990]; Burr v. Ambach, 863 F.2d 1071 [2d Cir. 1988]). Compensatory education is an equitable remedy that is tailored to meet the circumstances of the case (Wenger v. Canastota, 979 F. Supp. 147 [N.D.N.Y. 1997]). While compensatory education is a remedy that is available to students who are no longer eligible for instruction, State Review Officers have awarded "additional services" to students who remain eligible to attend school and have been denied appropriate services, 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 the Bd. of Educ., Appeal No. 06-074; Application of a Child with a Disability, Appeal No. 05-041; Application of a Child with a Disability, Appeal No. 04-054; Application of the Bd. of Educ., Appeal No. 02-047).
A careful review of the sparse hearing record does not provide sufficient evaluative evidence to conclude that had petitioner's son been timely evaluated after Hearing 1 he would have been determined eligible for special education services at that time. In the absence of record evidence demonstrating that petitioner's son would have been found eligible for services, I cannot award additional services. There is insufficient evidence showing that the student was entitled to receive special education services between the time of the January 18, 2005 impartial hearing officer decision and the January 4, 2006 date he was determined eligible (see J.D. v. Pawlet Sch. Dist., 224 F. 3d. at 70).
In addition, I note that results of the May 2005 Lindamood-Bell assessment and testimony of the Lindamood-Bell clinic director identified areas where the student may benefit from additional evaluations (Parent Ex. F).7 The clinic director testified that the student exhibited "significant" difficulty processing language (Tr. p. 86). Respondent's psychologist indicated in his report that although the student's receptive language was "adequate" for comprehension of test instructions, he had deficits in "higher order" verbal skills involving vocabulary knowledge, sequencing and reasoning (Parent Ex. C at pp. 2-3). The psychologist's report also suggested that the student had difficulty with verbal comprehension, auditory memory and sequencing verbal directions (Parent Ex. C at p. 3). Based on the foregoing, I will order that respondent conduct a speech-language evaluation of the student to further assess the difficulties reported by the clinic director of Lindamood-Bell and respondent's school psychologist, and that the CSE convene to determine if speech-language therapy services for the student are appropriate.
I also note that the student has a history of poor attendance (Tr. p. 57; Dist. Ex. 7; Parent Ex. C at pp. 1-2). Both the principal and the former assistant principal of special education raised the concern that the student has a "school phobia" (Tr. pp. 37, 62, 127, 148, 153-54). The problem with the student's attendance was noted in the psychoeducational report as historical information, but the cause of this difficulty and the suggestion that he may have some type of school aversion or phobia was not explored by the projective testing conducted by respondent's psychologist (Parent Ex. C). The psychologist recommended that respondent and petitioner collaborate to address the student's frequent absences from school, but did not provide information regarding the cause of his absenteeism (Parent Ex. C at p. 7). Although the principal of the student's school testified that respondent attempted to improve the student's attendance by using guidance intervention, telephone calls to his mother, home visits, an incentive program and referral to the Administration for Children's Services (ACS), the cause of his absenteeism is still unknown (Tr. pp. 48-49, 60-61, 155-56). Based upon the foregoing, I will order that respondent conduct a psychological evaluation that specifically assesses the factors that contribute to the student's absenteeism and how his absences relate to his disability.
In light of the foregoing, it is unnecessary to address petitioner's remaining contentions.
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that the impartial hearing officer's decision is annulled to the extent that it denied petitioner's request for an assistive technology evaluation of her son; and
IT IS FURTHER ORDERED that, unless the parties otherwise agree, within 30 days of the date of this decision respondent shall have conducted an assistive technology evaluation, a speech-language evaluation, and a psychological evaluation of the student; and
IT IS FURTHER ORDERED that, unless the parties otherwise agree, within 30 days after the assistive technology evaluation, speech-language evaluation, and psychological evaluations have been conducted the CSE shall convene to review the evaluation data, including the Lindamood-Bell assessment, and recommend appropriate educational services for the student.
1 I note at the outset that on appeal respondent does not object to petitioner's request that an assistive technology evaluation be conducted. I will therefore sustain petitioner's request for the evaluation and need not discuss the issue further.
2 A "Nickerson letter" is a letter from the Department of Education (DOE) to a parent authorizing the parent to immediately place the child in an appropriate special education program in any state-approved private school, at no cost to the parent (see Jose P. v. Ambach, No. 79 Civ. 270 [E.D.N.Y. Jan. 5, 1982], 553 IDELR 298). The remedy provided by the Jose P. decision is intended to address the situation in which a child has not been evaluated within 30 days or placed within 60 days of referral to the CSE (id.; see Application of the Bd. of Educ., Appeal No. 03-110; Application of a Child with a Disability, Appeal No. 02-075; Application of a Child with a Disability, Appeal No. 00-092). At the time of the hearing petitioner's son had been evaluated and placed in an educational program, therefore, given the facts of this case, questions concerning the issuance of a Nickerson letter are moot.
3 8 NYCRR 200.4 (d) provides that appropriate special education programs and services are to be provided to a student with a disability "within 60 school days of the receipt of the consent to evaluate."
4 Congress recently amended the IDEA, effective July 1, 2005 (see Individuals with Disabilities Education Improvement Act of 2004, Pub. L. No. 108-446, 118 Stat. 2647  [codified as amended at 20 U.S.C. § 1400, et. seq.]). Some of the relevant events at issue in this appeal occurred prior to the effective date of the 2004 amendment; however, some of the relevant events at issue in this appeal occurred after the effective date of the 2004 amendments. Therefore, at times the new provisions of the IDEA apply. Consistent with this, citations contained in this decision are to IDEA 2004, unless otherwise specified.
5 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(9).
6 The Code of Federal Regulations (34 C.F.R. Parts 300 and 301) was amended effective October 13, 2006, to implement changes made to the Individuals with Disabilities Education Act, as amended by the Individuals with Disabilities Education Improvement Act of 2004. In this case, none of the new provisions contained in the amended regulations are applicable because all relevant events occurred prior to the effective date of the new regulations. However, for convenience, citations herein refer to the regulations as amended because the regulations have been reorganized and renumbered.
7 I note that the January 2006 CSE did not have before it the results of the May 2005 Lindamood-Bell assessment of the student (Tr. pp. 172-73).