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RAY M. v. BOARD OF EDUC.

February 15, 1995

RAY M., et al., Plaintiffs, against THE BOARD OF EDUCATION, et al., Defendants.


The opinion of the court was delivered by: JOHN L. CADEN

CADEN, United States Magistrate Judge.

 On June 17, 1994 the undersigned issued a report and recommendation provisionally certifying a limited class of plaintiffs in this class action defined as:

 
All disabled preschool students living in New York City, ages three through five, who have not been or will not be timely evaluated, recommended for and/or provided special education services.

 On July 28, 1994, United States District Judge Eugene H. Nickerson held a hearing on defendants' objections to the June 17 report and recommendation wherein plaintiffs agreed to modify the above definition in order to address defendants' amorphousness concerns -- defendants were concerned that class members might not be readily identifiable. The parties appeared before this court on the following day and negotiated a modified definition. Accordingly, this court, on the record, certified the following provisional class:

 
All preschool students, ages three through five, living in New York City, who have been or will be referred to the Committee on Preschool Special Education for a determination as to whether they require special education services and who have not been or will not be timely evaluated, recommended for and/or provided special education services. (Emphasis indicates negotiated addition.)

 By order dated March 15, 1994, Judge Nickerson referred all outstanding certification questions to the undersigned to report and recommend thereon. On July 29, 1994, August 5, 1994, and January 10, 1995, hearings were held before this court to discuss the final and expanded definition of the class. After considering the parties' submissions and the hearing transcripts, the undersigned issues this supplemental report and recommendation and respectfully recommends certification of plaintiffs' proposed additions with one amendment for clarification purposes.

 I. BACKGROUND

 In short, plaintiffs allege that defendants have failed to timely provide them with appropriate special education services as prescribed under state and federal law. Although previously discussed in this court's June 17, 1994 report and recommendation, the pertinent facts and statutory schemes are summarized below.

 Named plaintiffs are seven minors ages three through five who are eligible for free preschool special education and reside in New York City. Defendants are, inter alia, the New York City Board of Education, the New York City Transportation Department, and the New York State Education Department.

 This litigation is controlled by two statutory schemes: the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1400-1485, and the New York Education Law ("NYEL"), §§ 4401-4410 (McKinney 1995 Supp.)

 The second statutory scheme, NYEL, tracks IDEA's requirements and sets forth the process whereby students receive a free appropriate preschool special education in the least restrictive environment that meets their individual needs, including language needs.

 NYEL directs the board of each district in New York to form a Committee on Preschool Special Education (the "CPSE"). The CPSE's involvement in the preschool education process commences once it receives a written referral from the district board indicating that a student may have an educational disability. *fn1" When referring a child to the CPSE, the board must provide the parent or guardian with a notice of the referral, a "Notice of Parental Due Process Rights" in the dominant or preferred language of the parent, a list of approved evaluators and providers of preschool special education services *fn2" , and a consent for evaluation form. N.Y.E.L. § 4410(4)(a), (b).

 Once the parent of the referred child consents to an evaluation by signing a parental consent form, the first of two 30-day statutory periods begins to run. During the first period, an appropriate evaluation site is considered; the parent chooses a site from a list provided by the board *fn3" , and a multidisciplinary evaluation of the child is performed.

 Additionally, within this 30-day period of time, the CPSE must convene to review the child's evaluations and issue a written report in the form of an Individualized Educational Program (the "IEP") . The IEP sets forth the child's eligibility for services, recommends specific services and programs for the child, and describes the extent to which the recommended programs are the least restrictive environment appropriate for the child. 8 N.Y.C.R.R. § 200.16(d).

 Once the CPSE has issued an IEP for a child, the Board of Education must arrange and provide the recommended services beginning on the appropriate program's start date (in July, September, or January). If the IEP is issued less than 30 days prior to, or after, such applicable start date, the board has 30 days in which to provide the recommended services -- the second 30-day statutory period. This includes providing transportation services. N.Y.E.L. §§ 4410(5)(b), 4410(8), (e); 8 N.Y.C.R.R. § 200.16(e)(1).

 II. REQUESTED RELIEF

 Plaintiffs propose the following additions to the previously certified class:

 
A) All disabled preschool students living in New York City, ages three through five, who are limited English proficient and who have been or will be referred to the Committee on Preschool Education for a determination as to whether they require special education services and for whom defendants failed to timely provide (i) an evaluation in the student's dominant language by appropriately licensed clinicians; and/or (ii) special education services that meet the student's language needs; and
 
B) All disabled preschool students living in New York City, ages three through five, who have been or will be referred to the Committee on Preschool Education for a determination as to whether they require special education services and for whom defendants failed to consider, recommend and/or provide special education services in the least restrictive environment. *fn4"

 For the reasons that follow, this court recommends expansion of the previously certified class to include the students described in Paragraphs A(i) and B. This court further recommends that the language provided in Paragraph A(ii) be modified, as discussed below, to better reflect the students that plaintiffs seek to include within this category.

 III. DISCUSSION

 A. Limited English Proficient Students

 In the first category, plaintiffs seek certification of limited English proficient ("LEP") students who fall within one or both of two categories: LEP students who have not been evaluated in their dominant language, and LEP students who are not receiving services that meet their language needs.

 1. Evaluation by a Licensed Clinician who Speaks the Student's Dominant Language

 Under the federal and state statutes outlined above, defendants are required to ensure that testing and assessment procedures, determining whether a student requires special education services, are performed in that student's dominant language. See 20 U.S.C. § 1412(5)(c); 8 N.Y.C.R.R. §§ 200.4(b)(14), 200.1(ee), 200.16(c)(2). It is not disputed that a large number of LEP students are either evaluated by a monolingual clinician (fluent in English only) or by a monolingual clinician with the assistance of an interpreter. Further, it is not disputed that there is a dearth of appropriately trained licensed clinicians to perform evaluations for LEP students.

 The statutory provisions grant defendants an exemption from the requirements stated above when it is "clearly not feasible" to provide these services. 20 U.S.C. § 1412(5)(c). The parameters of the "clearly not feasible" exemption and defendants' alleged abuse of this exemption will be reviewed by the court when the merits of the case are properly ...


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