The State Education Department
State Review Officer
Application of a CHILD WITH A DISABILITY, by her parent, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the City School District of the City of New York
Neal H. Rosenberg, Esq. attorney for petitioner
Hon. Michael A. Cardozo, Corporation Counsel, attorney for respondent, Edward Shin, Esq., of counsel
Petitioner appeals from an impartial hearing officerís decision that denied part of petitionerís request for reimbursement for the expenses of placing her daughter as a residential student in the Summit School (Summit) for the 2001-02 school year. The impartial hearing officer awarded petitioner reimbursement for the cost of placing her child at Summit as a day student, but found that equitable considerations precluded an award of reimbursement for the residential portion of the studentís placement. The appeal must be sustained.
Respondent asks me to excuse its delay in serving its answer to the petition. With petitionerís consent, respondentís time to answer the petition was extended until January 15, 2002. However, it did not serve its answer until February 7, 2002. Respondent asserts that it was unable to locate the complete record of the hearing until January 15, 2002. While I remind respondent of its obligation to maintain and provide copies of the records of impartial hearings when an appeal has been commenced (8 NYCRR 279.7), I have decided, in the interest of justice, to excuse the delay in this matter and accept respondentís answer.
Petitionerís daughter is 15 years old and had not been classified as a child with a disability by respondentís Committee on Special Education (CSE) when the hearing in this matter was held. She was adopted by petitioner and her then husband when she was three years old, and has never met her biological parents. Her adoptive parents divorced when she was five years old. The divorce was from all accounts acrimonious. The child has been in therapy with three different therapists from the time she was seven years old (Exhibit 7 pp. 2-3). Since the divorce, the child has lived for the most part with her mother. While in the sixth grade, the student moved to her fatherís house after she began having problems with petitioner. She resided with her father for a period of two years. After getting into a physical altercation with her father, the student moved back in with her mother.
The child had attended Hebrew day school through the eighth grade. She was enrolled in the ninth grade of Frisch Hebrew High School in Paramus New Jersey for the 2000-01 school year. Shortly after beginning high school, she began to cut her classes, and was asked to leave school because of her grades in the spring of 2001. In April 2001, the student began to attend respondentís Kennedy High School in the Bronx for her final semester of ninth grade. Although she initially expressed relief at not having to attend a religious school, she began cutting classes soon after her entry into Kennedy. Petitionerís daughter achieved a final average of 41.67 for the second semester, and had failed so many classes that she would have to attend summer school to earn sufficient credits to advance to the tenth grade. The student refused to attend summer school.
After speaking to a guidance counselor at her daughterís school, petitioner referred the student to the CSE for an evaluation. A school psychologist who evaluated the student on July 3, 2001 reported that she had achieved a verbal IQ score of 107, a performance IQ score of 125, and a full scale IQ score of 116. The psychologist also did some personality testing, and reviewed the studentís history with her adoptive parents. He noted that it had been difficult for petitionerís daughter to remain focused and motivated for school, because of the "nature of several traumatic family events". He opined that the student was "losing the ability and desire to conform to societyís demands" and was expending much energy "in attempting to control sexual/aggressive impulses and an active fantasy life". The school psychologist further opined that the student required stimulating classroom teaching in a supportive environment (Exhibit SD-2). An educational evaluation was completed for the CSE on July 5, 2001. The evaluator reported that the student demonstrated language ability at the superior level. On the Woodcock-Johnson Tests of Achievement, petitionerís daughter achieved well above grade level scores in all areas except math calculation, for which her score was at the appropriate grade level (Exhibit SD-6).
The CSE deferred its meeting scheduled for July 19, 2001 until August 2, 2001, so that the parent could provide the CSE with a psychiatric report. In a report dated July 31, 2001, an adolescent psychiatrist diagnosed the student as having an oppositional defiant disorder and depressive disorder (Exhibit SD-1). He described her as a child at risk of developing a serious conduct disorder and a substance abuse problem. He recommended that she be placed in a 12-month residential school with small, highly structured classes and a strong therapeutic component, where she could be supervised 24 hours per day.
A CSE meeting scheduled to take place on August 2, 2001 was deferred because not all of the required members could be present. When the CSE met again on August 9, 2001, it did not include a district representative, a general education teacher, or a parent member. It nevertheless proceeded to determine that petitionerís daughter was not eligible for classification as a child with a disability because she was of high average intelligence and could perform when tested individually on or above her grade level. The CSE recommended that the student return to Kennedy High School (Exhibit SD-3).
Petitioner did not agree with this recommendation, and requested an impartial hearing. In September, she unilaterally enrolled her daughter in Summit as a residential student for the 2001-02 school year. Petitioner did so, based upon the recommendation of her childís psychiatrist and psychologist. Summit, which is located in Nyack, NY, has been approved by the New York State Education Department to provide instruction to children with disabilities.
On October 19, 2001, the impartial hearing was held on this matter. The Board of Educationís representative at the hearing admitted that the CSE was invalidly constituted, and that the individualized education program (IEP) that it had prepared was therefore invalid (see Application of the Board of Educ., Appeal No. 00-023). The representative asserted that the Board would have issued a "Nickerson letter" (see Jose P. et al. v. Ambach et al., [79 C 270 U.S. D.C. E.D. N.Y.) authorizing petitioner to place her daughter in an approved private school for the entire school year, but did not do so because the parent sought a residential placement.
The hearing officer rendered his decision in this matter on November 30, 2001. He found that respondent had failed, by its own admission, to develop a valid IEP and make a timely placement for the student. In doing so, he implicitly found that the student was eligible to be classified as a child with a disability, because he noted that a board of education may be required to pay for educational services obtained for a child with a disability by the childís parents, if the services offered by the board of education were inadequate or inappropriate, the services obtained by the parents were appropriate, and equitable considerations support the parentsí claim. (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 ).
The hearing officer determined that the Board of Education had not met its burden of proving that it had offered to provide an appropriate educational program to petitionerís daughter and that petitioner had met her burden of proving that the services provided by Summit were appropriate to meet the needs of the student. With respect to the third and final criteria for reimbursement, i.e., whether the parentís claim is supported by equitable considerations, the hearing officer found that petitioner had cooperated with respondentís CSE. However, he limited her reimbursement to the cost of a day placement at Summit because he believed that the genesis of the studentís serious emotional issues lay with her parentsí divorce, and in particular, "the enmity with which the divorce and its aftermath have been conducted". From this, he reasoned that the studentís parents came into the proceeding with "unclean hands", and limited petitionerís reimbursement as so indicated.
Petitioner challenges that part of the hearing officer's decision that denied reimbursement for the residential portion of the childís placement at the Summit School. She asserts that the evidence demonstrates that her daughter required a residential placement, and that the hearing officer erred in denying her reimbursement for the residential portion of her daughterís placement on equitable grounds. Respondent argues that a residential placement is too restrictive for the student, and that equitable considerations do not support reimbursement for a residential placement. In making the latter argument, respondent asserts that petitionerís daughter has not been classified as emotionally disturbed by the CSE or the hearing officer, and that petitioner has not explicitly claimed in this appeal that her child is emotionally disturbed.
Respondentís argument raises the issue of the scope of my review in this appeal. In the absence of a cross-appeal by the Board of Education from the hearing officerís award of partial reimbursement, I would not ordinarily reach the issue of the student's classification, because it might be viewed as disturbing the finality of the hearing officerís decision (Hiller v. BOE Brunswick CSD et al., 674F. Supp73 [NDNY1987]). However, as noted above, the issue of classification is implicit in the hearing officerís decision to grant petitioner reimbursement for the day portion of the studentís placement at Summit. Petitioner would not be entitled to any tuition reimbursement, if her daughter did not meet the definition of a child with a disability under the Individuals with Disabilities Education Act (IDEA) and Article 89 of the New York State. Under the circumstances, including the fact that the hearing officer did not identify a specific classification for the student, I find that I must consider whether she meets the definition of a student with an emotional disturbance.
Emotional disturbance means:
[A] condition exhibiting one or more of the following characteristics over a long period of time and to a marked degree that adversely affects a student's educational performance:
(i) an inability to learn that cannot be explained by intellectual, sensory, or health factors;
(ii) an inability to build or maintain satisfactory interpersonal relationships with peers and teachers;
(iii) inappropriate types of behavior or feelings under normal circumstances;
(iv) a generally pervasive mood of unhappiness or depression; or
(v) a tendency to develop physical symptoms or fears associated with personal or school problems.
The term includes schizophrenia. The term does not apply to students who are socially maladjusted, unless it is determined that they have an emotional disturbance.
(8 NYCRR 200.1[zz]).
I find that there is sufficient evidence in the record to support the classification of petitionerís daughter as a student with an emotional disturbance. I must note that the phrase "an inability to learn" has long been interpreted to mean that a studentís emotional condition has a significant effect upon his or her educational performance, rather than preventing the student from doing any learning (Application of a Child with a Handicapping Condition, Appeal No. 90-9). This child is not performing academically in a manner that is commensurate with her cognitive ability, and has no sensory or health factors to explain her failure to perform. Prior to her placement in Summit, she was failing nearly all her courses and was not attending school on a regular basis. This is a problem that has been developing over time, and is adversely affecting her educational performance. The student has been diagnosed as having a depressive disorder that began to manifest itself about ten years earlier and has continued to this day. This certainly fits the definition of "a generally pervasive mood of unhappiness or depression."
The hearing officer found that petitioner had prevailed with respect to the first and second criteria for an award of tuition reimbursement, that is the inappropriateness of the districtís program and the appropriateness of Summitís program. Absent a cross-appeal by the Board of Education, the hearing officerís findings with regard to those issues are final and cannot be reviewed in this appeal. However, respondent asserts that petitioner is not entitled to be reimbursed for the cost of the residential portion of her daughterís placement at Summit because petitioner has failed to prove that her daughter required a residential placement in order to benefit from her educational program and make educational progress (Application of a Child with a Disability, Appeal No. 99-86).
In his determination regarding Summitís program, the hearing officer considered the fact that the restrictiveness of a parental placement may be considered in determining whether the parent is entitled to an award of tuition reimbursement (M.S. v. Board of Educ., 231 F.3d 96 [2d Cir. 2000]). His inquiry appeared to focus upon the fact that all of the students at Summit were students with disabilities, rather than the fact that petitioner was seeking a residential placement. Nevertheless, I must find that the hearing officerís finding that petitioner had met her burden of proof regarding Summitís program, which in this case involved a residential placement about which evidence was taken at the hearing, is final and cannot be reviewed by me. Therefore, I must reject respondentís contention that the petitionerís daughter does not require a residential program in order to benefit from her educational program.
It is clear from the hearing officerís decision that he denied petitionerís claim for reimbursement of the residential portion of her daughterís placement at Summit solely on equitable grounds. Having reviewed the brief record in this case, I find that it simply does not afford a basis for the hearing officerís conclusion, which is speculative in nature regarding the etiology of the studentís disability. In the absence of any other equitable factor, I find that petitioner has satisfied all three criteria for a reimbursement award.
THE APPEAL IS SUSTAINED.
IT IS ORDERED that the hearing officerís decision is hereby annulled with respect to his denial of reimbursement for the residential portion of the studentís placement at the Summit School during the 2001-02 school year; and
IT IS FURTHER ORDERED that respondent shall reimburse petitioner for her expenditures for her daughterís residential placement at the Summit School during the 2001-02 school year, upon petitionerís presentation of proof of payment for that placement.
Albany, New York
March 26, 2002
JOSEPH P. FREY