The State Education Department
State Review Officer

No. 97-24

 

Application of the BOARD OF EDUCATION OF THE WAPPINGERS CENTRAL SCHOOL DISTRICT for review of a determination of a hearing officer relating to the provision of educational services to a child with a disability

Appearances:
Michael K. Lambert, Esq., attorney for petitioner

RosaLee Charpentier, Esq., attorney for respondent

 

DECISION

        The Board of Education of the Wappingers Central School District appeals from an impartial hearing officer's decision which ordered the board of education to reimburse respondent for her expenditures for a private psychological evaluation and private counseling for her son, as well as the cost of the boy's tuition at the Karafin School during the 1995-96 school year. He also ordered petitioner to reimburse respondent for her expenditures in transporting her child to that private school. The appeal must be sustained in part.

        Respondent's son, who is 19 years old, was enrolled in a private school for kindergarten. Thereafter, he was enrolled in petitioner's schools for the first through the eleventh grades. During that time, the boy was not identified as a child with a disability, and he did not receive special education services. The record reveals that respondent's son received satisfactory grades and exhibited appropriate work habits while in the first grade. However, his reading skills were reported to be below grade level, and he reportedly began to have difficulty following directions and working independently while in the second grade during the 1985-86 school year.

        In the fall of 1985, respondent had referred her son to petitioner's CSE because of a suspected problem with the boy's visual perception, e.g., reversing letters and numbers. The boy's vision was reported to be normal. Petitioner's school psychologist reported that the boy had achieved a verbal IQ of 111, a performance IQ score of 108, and a full scale IQ score of 110. On one test of his visual/motor development, the child had achieved an average score, but on a second test, he exhibited a delay of approximately two years in the development of his visual/motor skills. The child's performance on tests of his written language and expression was also reported to be within the average range, although his spelling skills were described as being weak. The school psychologist opined that respondent's son did not manifest signs of a learning disability, but had a slight delay in the development of his visual-perceptual motor skills.

        On a group administered achievement test which he took in the spring of 1986 near the end of the second grade, the child achieved national percentile scores of 84 for reading, 96 for mathematics, 52 for spelling, and 80 for language (Exhibit L). The boy continued to have below grade level reading skills in the third grade. His third grade teacher noted on the boy's report card that his performance was inconsistent, and that he was easily distracted. On a group administered achievement test which he took near the end of the fourth grade in the spring of 1988, the child achieved national percentile scores of 81 for reading, 40 for mathematics, 35 for spelling, and 47 for language (Exhibit M). The boy reportedly began to receive remedial reading instruction near the end of the fourth grade. The boy achieved generally satisfactory marks while in the fifth grade, but his teacher commented about the boy's inconsistent performance, on the child's report card.

        While in the sixth grade during the 1989-90 school year, the child's reading skills were reported to be below grade level, and he had difficulty with decimals and fractions in mathematics. He was privately tutored in mathematics for part of the school year. Respondent's son achieved final averages of 72 in mathematics, 79 in science and 82 in social studies, and letter grades of C for English, C for reading, and B for spelling in the sixth grade. During the next three years, respondent's son achieved final grades of 69, 70, and 66 in English, 65, 60, and 79 in mathematics, 73, 67, and 65 in social studies and 74, 70, and 43 in science. A grade of 65 is passing in petitioner's high school. Therefore, the boy had failed one and barely passed two of his four major academic subjects at the end of the ninth grade. He did pass the Regents Competency Test in mathematics while in the ninth grade. Respondent's son was allegedly involved in some relatively minor disciplinary incidents while in the ninth grade. Near the end of the school year he was evaluated for depression at the St. Francis Hospital, which reportedly assigned a crisis counselor to him.

        During the 1993-94 school year, when he was in the tenth grade, the boy was suspended from school for alleged vandalism in school, and he was also disciplined for cutting classes and for being tardy. The boy's high school guidance counselor testified at the hearing in this proceeding that the boy was referred to the school district's special counseling program because of a possible drug abuse during the 1993-94 school year. It should be noted that there is no evidence in the record that the boy was involved with drugs. In addition, he was involved in the district's "Project Team", which provided him with peer mediation and counseling. The guidance counselor further testified that she suggested to respondent that her son be re-evaluated, but that petitioner was uncomfortable with that suggestion. The boy achieved final grades of 65 for English, 62 for mathematics, 55 for social studies, and 75 for science in the tenth grade. He subsequently achieved the grade of 80 for social studies in summer school.

        In March, 1994, one of the boy's counselors reportedly recommended that he receive private counseling. Petitioner and her husband employed a social worker to counsel the boy from March 31, 1994 until November 22, 1994, at a cost of $2,945 (Exhibit T). Petitioner testified that on or about November 22, 1994, the boy's guidance counselor recommended that her son receive psychiatric assistance. Petitioner engaged the services of Dr. Thomas Van Aken, who initially saw the boy on December 7, 1994. Dr. Van Aken prescribed an anti-depressant medication for respondent's son. Although the boy responded favorably to his medication, he continued to have difficulty in school. On April 27, 1995, Dr. Van Aken, who believed that the boy had an attention deficit disorder (ADD), recommended that he be evaluated by a psychologist to determine if he had ADD and/or a specific learning disability.

        On May 1, 1995, petitioner gave a written request for a complete psychological evaluation of her son to the boy's guidance counselor (Exhibit DD). The evaluation request, which was addressed to Dr. Capichioni, who is one of petitioner's school psychologists, was given to the guidance counselor in a sealed envelope. The guidance counselor testified that she either delivered the envelope to Dr. Capichioni's office, or put the letter "in the mailbox". However, Dr. Capichioni testified at the hearing that he had never received respondent's request for an evaluation.

        Petitioner arranged for Dr. Marian Rissenberg to privately evaluate her son in June, 1995. In her report of her evaluation, Dr. Rissenberg noted that the boy had worn glasses for nearsightedness since he was eight years old, and he had been evaluated by a neurologist, with no significant findings, when he was nine years old. She described the boy as being depressed and withdrawn, but he was attentive during testing. The boy achieved a verbal IQ score of 104, a performance IQ score of 100, and a full scale IQ score of 102. In her report and testimony at the hearing, Dr. Rissenberg opined that the child's intellectual ability was understated by the test results, and she estimated that his cognitive skills were probably at the 91st percentile, based upon his performance on certain IQ subtests. She reported that the boy was especially weak in performing tasks requiring mental tracking ability, and visual-spatial processing ability. The boy's sequencing ability was also weak, as also was his auditory processing ability. Dr. Rissenberg reported that the boy's reading skills were at the post-high school level, but that his mathematics skills were at the ninth grade level, and his total writing skills were at the seventh grade level. The boy's writing sample was at the beginning fifth grade level. Dr. Rissenberg concluded that the boy demonstrated signs of having ADD, and that he could have a depressive disorder. She recommended that he receive individual remediation to improve his study skills and problem solving skills. Her bill for the evaluation was $1,600.

        Respondent's son achieved final grades of 67 for English, 69 for mathematics, 59 for social studies, and 68 for science for the eleventh grade. He took the social studies course again in summer school, and achieved a grade of 86. His cumulative weighted average at the end of three years of high school was 68.899.

        On July 13, 1995, respondent met with her son's guidance counselor and Dr. Capichioni to review Dr. Rissenberg's evaluation, and the boy's proposed schedule for the 1995-96 school year. The proposed schedule did not include a lunch period, and reportedly would not have permitted the boy to receive remedial services during the school day. Dr. Capichinio and the boy's guidance counselor testified that respondent expressed her frustration with petitioner's school system, and she indicated that she was contemplating placing her son in the Karafin School. Neither Dr. Capichinio nor the guidance counselor referred the boy to petitioner's CSE.

        On August 1, 1995, respondent enrolled her son in the Karafin School for the 1995-96 school year, at a cost of $14,000. The boy's parents transported him to and from the private school each school day, a distance of 98 miles round trip. The boy received a "RCT" diploma (see 8 NYCRR 100.5 [a]) from the Karafin School at the end of the 1995-96 school year. He was reportedly enrolled in a college for the 1996-97 school year.

        In a letter dated May 9, 1996, respondent requested a hearing pursuant to the provisions of the Individuals with Disabilities Education Act (20 USC 1400 et seq.) and Section 504 of the Rehabilitation Act of 1973 (29 USC 749). By agreement, the hearing began on August 14, 1996. It concluded on December 3, 1996. The hearing officer rendered his decision on January 28, 1997. He found that respondent's request for evaluation of her son in the spring of 1995 was a referral of the boy to petitioner's CSE pursuant to 8 NYCRR 200.4, and that petitioner had failed to follow-up on that referral. The hearing officer further found that the testimony by Dr. Van Aken and Dr. Rissenberg afforded a basis for concluding that the boy was entitled to "remedial educational services" under the Individuals with Disabilities Education Act, Section 504 of the Rehabilitation Act of 1973, or both statutes. He then applied the so-called "Burlington" criteria for tuition reimbursement (see School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]). The hearing officer found that the board of education had failed to demonstrate the appropriateness of the services which it had offered respondent's son for the 1995-96 school year. He further found that respondent had met her burden of demonstrating that the services provided by the Karafin School addressed the boy's needs. The hearing officer noted that respondent had waited until May, 1996 to commence this proceeding, but he found that equitable considerations nevertheless supported respondent's claim for tuition reimbursement. In addition to ordering petitioner to reimburse respondent to the amount of $14000 for the boy's tuition at the Karafin School, the hearing officer also directed petitioner to reimburse respondent for the cost of transporting her son to and from school at the rate which petitioner would have paid for reimbursement for travel expenses to a residential school pursuant to 8 NYCRR 200.12 (a). He further directed petitioner to reimburse respondent in the amount of $1600 for the cost of Dr. Rissenberg's evaluation, and $2945 for counseling services provided by the social worker.

        The board of education challenges the hearing officer's decision on a number of grounds. It contends that, to the extent that the hearing officer may have premised his decision upon petitioner's alleged failure to identify the boy as a child with a disability in the years prior to a 1995-96 school year, the record does not support a finding that petitioner failed to perform its "child find" duties (see 34 CFR 300.128; 34 CFR 300.220). Although the hearing officer indicated in his decision that respondent's son should have been referred to the CSE "much earlier" in his school career, he did not impose liability upon the board of education for having failed to refer the child to the CSE prior to the 1995-96 school year. Therefore, I find that petitioner's contention is without merit.

        Petitioner argues that the hearing officer referred to both the Individuals with Disabilities Education Act and Section 504 of the Rehabilitation Act of 1973, but he failed to articulate a clear basis for imposing liability upon the board of education. It further argues that there is no basis in the record for finding that respondent's son meets the criteria for identification as a child with a disability, and that the parent of a child who is not eligible to receive services under the Individuals with Disabilities Education Act cannot obtain reimbursement under the Burlington decision. I agree with petitioner to the extent that it argues that the boy must have been eligible to receive services under the Individuals with Disabilities Education Act if respondent is to receive reimbursement under the Burlington decision. I disagree with its argument that respondent's son could not have been classified as a child with a disability under the applicable Federal and State criteria for classification.

        In order to be classified as a child with a disability under either Federal or State regulation, a child must have a specific physical or mental disability which adversely impacts upon the child's educational performance to the extent that he or she requires special education and/or related services (Application of a Child Suspected of Having a Disability, Appeal No. 94-36; Application of a Child Suspected of Having a Disability, Appeal No. 95-11). Dr. Rissenberg's evaluation report, which has not been significantly challenged in this proceeding, indicated that respondent's son has specific weaknesses in his ability to pay attention, to process information, and to plan and organize. Those weaknesses appear to have been a reflection of the boy's ADD. In addition, Dr.Van Aken, the boy's psychiatrist, has opined that the boy has a depressive condition, i.e., a mood disorder which frequently accompanies the condition of ADD. When tested by Dr. Rissenberg in June, 1995, the boy was found to have mathematical and writing skills which were well below expectation for a child of his cognitive ability. As noted above, this boy's three-year cumulative high school average was only slightly above the failure level. I have also considered Dr. Rissenberg's recommendation that respondent's son be instructed in small classes, and that he receive instruction in study and organizational skills, as well as remediation (Transcript, page 236). Upon the record before me, I find that respondent's son would have been appropriately classified as other health impaired (see 34 CFR 300.7 [a][8]; 8 NYCRR 200.1 [mm][10]).

        As noted above, a board of education may be required to pay for educational services obtained for a child by the child's parents if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]). In view of my finding that the child would have been appropriately classified as other health impaired for the 1995-96 school year, and that the CSE failed to evaluate the child upon respondent's referral of her son on or about May, 1995, in violation of 8 NYCRR 200.4 (a)(1), I concur with the hearing officer's determination that respondent has prevailed with regard to the first of the three criteria for tuition reimbursement.

        The child's parent bears the burden of proof with regard to the appropriateness of the services which the parent obtained for the child (Application of a Child with a Disability, Appeal No. 94-29; Application of the Board of Education of the Monroe-Woodbury CSD, Appeal No. 93-34). In order to meet that burden, the parent must show that the services were "proper under the act" (School Committee of the Town of Burlington v. Department of Education, Massachusetts, supra 370) i.e., that the private school offered an educational program which met the child's special education needs (Application of a Child with a Disability, Appeal No. 94-29). The Karafin School has been approved by the State Education Department to provide instruction to children with disabilities. At the hearing in this proceeding, the boy's English and social studies teacher testified that Karafin provided instruction to its students in classes of no more than six children. An aide or teaching assistant was assigned to each class. She further testified that the school served children who were classified as either learning disabled or emotionally disturbed. That fact does not, in my opinion, establish that the school was inappropriate for this student, given his processing difficulties and his depression. The teacher testified that she modified the instruction she provided to meet the needs of her students. She described the effort the boy had expended to improve his writing skills. The written progress reports which are in the record before me indicate that respondent's son was academically successful in the Karafin School, and that his ability to remain focused in class had improved. Ms. Jacobs, the boy's English and social studies teacher, testified that respondent's son was not initially receptive to education, and did not relate well to the school's staff. However, his attitude changed during the school year. It should be noted that he was counseled by a school psychologist employed by the Karafin School throughout the school year. I have considered petitioner's contention that the Karafin School was not the least restrictive environment for the boy, but in the absence of any information in the record about less restrictive placements which would have met the boy's needs, I must reject petitioner's contention. Upon the record which is before me, I find that respondent has met her burden of proof with respect to the appropriateness of the services which were provided by the Karafin School.

        The final criterion for an award of tuition reimbursement is that the parent's claim must be supported by equitable considerations. The board of education asserts that respondent should not be allowed to recover her expenditures for her son's tuition because she waited until the 1995-96 school year was almost over to initiate this proceeding. Parents should resort to the due process procedures promptly in order to afford school authorities the opportunity to correct mistakes or omissions (Matter of Northeast CSD v. Sobol, 79 NY 2d 598 [1992]; Bernardsville Board of Education v. J. H., 42 F. 3d 149 [3d Cir., 1994]; Application of a Child with a Disability, Appeal No. 95-82). In this instance, the record is not entirely clear about when respondent became aware of her due process rights. Petitioner introduced written evidence that respondent had received a booklet describing her rights in 1985, when her son was in the second grade (Exhibit 7). However, respondent testified that she did not recall having received the booklet. In view of all of the circumstances, including the fact that respondent did institute this proceeding before the 1995-96 school year had concluded, I find that equitable considerations do support her claim for tuition reimbursement. Respondent has therefore prevailed on all three criteria for an award of tuition reimbursement.

        Petitioner opposes the hearing officer's decision to allow respondent to be reimbursed for transporting her son to the Karafin School on the ground that she failed to formally request in writing that petitioner provide transportation. At the hearing, respondent testified that, at her meeting with Dr. Capichioni and the boy's guidance counselor on July 13, 1995, she asked whether transportation could be provided. She further testified that she was told at that meeting that transportation would not be provided by the school district (Transcript, page 535). Respondent's testimony has not been refuted, and I find that there is no basis to set aside the hearing officer's determination.

        Federal and State regulations provide that the parents of a child with a disability is entitled to obtain an independent educational evaluation at public expense if they disagree with the school district's evaluation of the child. However, their right to an independent evaluation is subject to the right of the school district to initiate a hearing to demonstrate the appropriateness of the school district's evaluation. If a hearing officer finds that the school district's evaluation is appropriate, the parents may have an independent evaluation, but not at public expense (34 CFR 300.503; 8 NYCRR 200.5 [a][1][vi][a]). In this instance, respondent initiated the hearing. However, that fact would not have precluded the board of education from introducing evidence about the appropriateness of its evaluation, if it had conducted an evaluation. Petitioner has not offered any explanation for its failure to evaluate respondent's son. I agree with the hearing officer that respondent is entitled to be reimbursed for the cost of the boy's evaluation by Dr. Rissenberg.

        The board of education also challenges the hearing officer's determination that it should reimburse respondent in the amount of $2,945 for the counseling which Jerry Dolan, CSW, provided to the boy from December, 1994 through February, 1995. It argues that it was unaware that Mr. Dolan was counseling the boy, and that the record does not reveal how that counseling was related to the boy's educational performance. I find that petitioner's objection to this portion of the hearing officer's decision is well-taken for the two reasons. First, to the extent that the reimbursement claim is based upon the provisions of the Individuals with Disabilities Education Act, I find that there is insufficient evidence in the record prior to Dr. Rissenberg's evaluation in June, 1995 to determine that the boy was eligible to receive services under that statute, or its State counterpart. Secondly, I agree with petitioner that there is simply no evidence in the record about the nature of the services which Mr. Dolan provided. Accordingly, I will sustain petitioner's appeal with respect to the reimbursement of respondent for the cost of Mr. Dolan's services.

        THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

        IT IS ORDERED that the portion of the hearing officer's decision ordering the board of education to reimburse respondent in the amount of $2,945 for counseling services is hereby annulled.

 

 

 

Dated: Albany, New York __________________________
January 15, 1998 FRANK MUŅOZ