The State Education Department
State Review Officer
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 Board of Education of the Onteora Central School District
Donoghue, Thomas, Auslander & Drohan, attorneys for respondent, James P. Drohan Esq., of counsel
Petitioner appeals from an impartial hearing officerís decision dismissing his claims relating to his sonís education during the 2000-01 school year at the Grove School (Grove), a private residential school in Madison, Connecticut, his discharge from that school and his subsequent home attendance in respondentís district, including the timing of certain testing and of a pharmacological evaluation approved by respondentís Committee on Special Education (CSE), and petitionerís reimbursement for approved travel and related expenses. The appeal must be sustained to the extent indicated.
I will first consider respondentís procedural objections. Respondant contends that the appeal is untimely. Petitionerís initial attempt to initiate this appeal was made on the 41st day after receipt of the hearing officerís decision (cf. 8 NYCRR 279.2[b]). Upon being informed that he could not commence the appeal by mailing the petition to respondentís attorney, petitioner served his petition on two more occasions, in response to directions from the Office of Counsel and the Office of State Review. Under the circumstances, including the fact that respondent has provided no evidence that it has been prejudiced by the delay, I will excuse petitionerís delay in proper service.
Respondent objects to 21 exhibits annexed to the petition that were not a part of the record below. Documentary evidence not presented at a hearing may be considered in an appeal from a hearing officerís decision, if such evidence were unavailable at the time of the hearing or if the record would be incomplete without it (Application of a Child with a Disability, Appeal No. 01-103; Application of a Child with a Disability, Appeal No. 01-083). I find that petitionerís exhibits 1-4, 6-17, and 20-22 will make the record complete. They provide relevant information and I will accept them. Respondent contends that Exhibit 17 is protected by the attorney-client privilege. However, the document was found in the studentís file by petitionerís advocate, and a copy was provided to her by respondent staff at her request. I will accept the document. The remaining documents, Exhibits 19 and 23, were not available at the time of the hearing. I will therefore accept and consider the two documents to the extent they are relevant (Application of a Child with a Disability, Appeal No. 01-030).
Respondent contests petitionerís standing to bring this appeal because the student has attained the age of majority and is reportedly residing in Florida. The Individuals with Disabilities Education Act (20 USC 1400 et seq., hereinafter IDEA) includes extensive procedural safeguards for children with disabilities and their parents. These safeguards guarantee parents both an opportunity for meaningful input into all decisions affecting their childís education and the right to seek review of any decisions they think inappropriate (Honig v. Doe, 484 U.S. 305, 311-312 ). The record reveals that petitioner has participated in his sonís educational decisions since respondent classified the student as disabled in August 1997. There is no evidence that the petitionerís parental rights have been terminated or otherwise relinquished. Although petitionerís son is over 18, respondent has not demonstrated that petitionerís rights under the IDEA were transferred to his son by operation of state law (20 U.S.C. ß 1415[m]; 34 C.F.R. ß 300.517[a]). The studentís reported place of residence does not defeat petitionerís standing. The evidence does not show that the student has permanently forsaken the state and will not return to obtain his high school diploma. Moreover, petitioner seeks reimbursement of, and payment for, education related services. These claims survive without respect to the studentís current place of residence (University of Texas v. Camenisch, 451 U.S. 390 ). In light of the parental rights protected by the IDEA, petitioner is not required to show that the student is in accord with this appeal. Accordingly, I find that petitioner has standing to seek an impartial hearing and to pursue this appeal (Application of a Child with a Disability, Appeal No. 97-47).
Petitioner asserts that the hearing officerís appointment was tainted by the alleged involvement of respondentís superintendent and its CSE chairperson. He relies on an e-mail message from the district clerk, who was also the secretary to the superintendent, advising the CSE chairperson that "we have a winner" and the CSE chairpersonís reply to "go on with the usual process" and bring the person "to the Board for approval" (Exhibit 17). The district clerk testified that her e-mail was meant only to convey that she had identified the available person from the rotational list and also that she communicated this information to the CSE chairperson because of the length of time that it had taken to identify an available hearing officer (Transcript pp. 1360-1363). There was no testimony that respondentís superintendent or the CSE chairperson was involved in selecting the hearing officer from the rotational list. I find that petitionerís assertion is without merit.
Petitionerís son was 18 years old and receiving home instruction at the commencement of the hearing in June 2001. He had attended Grove from September 1999 to April 18, 2001, having been placed there by respondent on an emergency interim basis with the approval of the New York State Education Department. The student, who had been scheduled to graduate from Grove at the end of August 2001, was discharged shortly after his 18th birthday with his consent because of his conduct. Petitionerís son has a history of emotional difficulties. The student had a two-month initial psychiatric hospitalization in August 1995 after he completed sixth grade in respondentís schools. He subsequently exhibited a history of difficulty complying with prescribed medication regimens and recommended educational programs. Respondentís CSE classified the student as emotionally disturbed in 1997, and reclassified him as multiply disabled (emotionally disturbed and other health impaired) in 1998 on the basis of testing and evaluation indicating significant brain dysfunction adversely affecting his educational performance and emotional stability. The student reportedly has average to above average intellectual abilities (Exhibit B), and has been hospitalized on a number of occasions. As a result of his disability, he has attended respondentís schools for less than a semester, and instead attended a number of different private residential schools. At the present time, he reportedly resides in Florida. He has not completed the requirements for a high school diploma.
In the spring of 2000, the Grove staff advised respondent of concerns regarding the studentís behavior (Transcript pp. 907-8, 933). In the summer and fall of 2000, Grove advised respondent that it did not wish the student to remain at the school during the 2000-01 school year without a pharmacological evaluation (Transcript pp. 933, 942-43, 1052). During this period, respondent reportedly made unsuccessful inquiries of other schools regarding his enrollment (Transcript pp. 940, 943, 952), and its CSE chairperson advised Grove that the student would have to remain at Grove unless another placement was found. On August 16, 2000, the studentís psychiatrist at Grove reported that the studentís condition had deteriorated to the extent that his ability to function in school was in jeopardy, and that hospitalization had again been seriously considered (Exhibit D). The psychiatrist also advised that a complete pharmacological evaluation as well as a repeat of medical studies done two years earlier was necessary to evaluate the effectiveness of the studentís current medicine regimen and to provide information regarding changes in his treatment program that might be necessary.
On August 16, 2000, respondentís CSE recommended that the student remain classified as multiply disabled and remain in his placement at Grove for the 2000-01 school year. The CSE agreed to provide the requested evaluation and tests. At petitionerís request, the CSE also discussed placing the student for the testing and evaluation at the Brown School in Texas, which he had previously attended. The CSE rejected the idea for various reasons, including that it was not recommended by Groveís psychiatrist, that Brownís location did not facilitate future testing there, and that the student would lose his Grove placement. Petitioner requested an impartial hearing on August 30, 2000 regarding the CSEís recommendation that the student return to Grove. Grove did not pursue the studentís discharge.
Subsequent to the August CSE meeting, respondent determined to have the recommended testing and evaluation completed at medical facilities affiliated with Harvard University. However, the student could not be scheduled for the testing until October and the pharmacological evaluation could not be scheduled until December. Therefore, petitioner made arrangements to have the student seen by personnel associated with the Yale Medical School (Yale), which was located near Grove. Yale could see the student for an initial neurological examination on September 11, 2000 (Exhibit L). Respondent objected to this arrangement because the Yale facilities did not have the ability to conduct a test identified in the record as the BEAM test, which was one of the tests recommended by the Grove psychiatrist and approved at the August CSE meeting. The parties resolved the matter on October 4, 2000. Petitioner withdrew his August 2000 impartial hearing request, and respondent agreed to reimburse him for past and future expenses for the neurological testing and pharmacological evaluation at Yale and by affiliated personnel (Exhibit 4). Subsequent Yale testing in 2000 showed a normal brain MRI and an abnormal EEG (Exhibit L, pp. 5-7).
The record contains little information regarding the studentís activity at Grove during the fall and early winter of the 2000-01 school year. He reportedly expressed a desire not to return to Grove at the mid-year break, but ultimately did so. In a letter dated January 16, 2001 (Exhibit G), the Grove psychiatrist reported that the medication regime had not been successful in controlling the studentís unstable moods and difficulties with concentration and attention. He recommended that the student be seen in consultation with a specialist in adolescent pharmacology to obtain a second opinion for better management of his illness. Petitioner arranged for such a specialist to consult with the psychiatrist, and on January 19, 2001 the physicians agreed on a plan to modify the studentís medication (Exhibit M).
The student returned to Yale Medical School on January 22, 2001, where a neurologist reported that he continued to have mood instability and problems with behavior control, and that recent daytime sleepiness had been addressed by a change in medication. The neurologist opined that the studentís condition did not require further neurological treatment or evaluation, and that symptoms were best approached as a psychiatric disorder requiring symptomatic treatment. He recommended medication management be left to the studentís psychiatrist, but indicated that the studentís caffeine consumption should be reduced, as caffeine was a stimulant and might be contributing to the studentís inappropriate behavior (Exhibit 6).
Grove suspended the student for five days on February 9, 2001. After discussions at home with petitioner and the consulting specialist, the student returned to Grove on February 14, 2001, and advised staff that he would participate in its program until he turned 18. Grove advised respondentís staff of these problems, and it was agreed that the CSE would convene to evaluate the studentís placement and options if he thereafter refused to attend class or therapy (Exhibit E).
The CSE met with the student on his 18th birthday in early April 2001 to discuss his placement. It was agreed that he would remain at Grove. However, his attendance and adherence to the schoolís rules and structure deteriorated. On April 17 and 18, 2001, the student and Groveís associate director spent a considerable amount of time discussing class attendance. Following the studentís refusal to improve his attendance and his destruction of school property, petitionerís son was discharged, with his consent, on April 18, 2001 (Exhibit C). The CSE chairperson acknowledged that Grove had advised her of the studentís discharge the next day.
Respondentís CSE met with the student on May 9, 2001 to discuss and establish his program and graduation requirements (Exhibit 2). Respondentís director of guidance determined that, in order to graduate from high school, petitionerís son needed to earn 0.75 credits in civics and 0.4 credits in English 12. He also needed to pass Regents exams and/or Regents Competency Tests (RCT) in math, English and/or reading and writing as well as RCT examinations in global studies, American history, and science. The CSE recommended a home instruction program to be held at the high school after school and at home for the 102 hours of class work necessary to earn the required English and civics credits and to prepare for the RCT and/or Regents exams. The CSE recommended that the student be provided with up to 20 hours of home instruction a week through June, with a minimum of 10 hours a week. It also recommended that the home instruction program continue through the end of the 12-month program in August 2001, if necessary. If the student had passed his required examinations and attended a sufficient amount of home instruction to obtain the balance of his English and civics credits, he would have been eligible to receive a diploma by August 2001.
The CSE also recommended counseling services through August 2001, including individual counseling once a week for 30 minutes. It also recommended a psychiatric update and medication monitoring once a week, for an hour each time as well as case management by the school social worker three times a month, for an hour each time. The CSE further recommended that the student be referred to the Ulster County Department of Mental Health for transition into adult mental health services. It repeated its April request that he receive a VESID evaluation, and also recommended that he visit BOCES to see vocational and technical programs. The Board of Education approved the studentís IEP on June 4, 2001.
Petitioner requested an impartial hearing on April 6, 2001. The hearing officer was appointed on May 7, 2001 and the hearing commenced on June 25, 2001. The hearing continued on July 2, 3, 5, and 30, August 3, September 25 and concluded on October 10, 2001. Petitioner raised a number of issues at the hearing, including the amount of credits and coursework his son needed to graduate, whether the student should have been placed at Brown for the testing and pharmocological evaluation, that respondent ignored the Grove psychiatristís concern about his sonís functioning and that it delayed in scheduling the testing and services recommended at the August 2000 CSE meeting, the absence of a transition plan when Grove discharged the student in April 2001, the timing of the follow-up May 9, 2001 CSE meeting, the adequacy of the IEP resulting from the May 9, 2001 meeting, whether at or after that time respondent should have placed the student back at Brown for a pharmacological evaluation to stabilize his medications, and a number of financial issues. The financial matters included reimbursement for telephone calls to Grove, reimbursement for approved travel to Grove and related expenses, and payment of and/or reimbursement for testing and the pharmacological evaluation recommended at the August and/or October CSE meetings and for travel and related expenses associated with that testing and evaluation.
At the commencement of the hearing, respondent asked the hearing officer to dismiss petitionerís claims with respect to graduation requirements for the student. The hearing officer issued a written decision on August 8, 2001, holding that he lacked jurisdiction relating to those claims. On September 25, 2001 and on October 10, 2001 the hearing officer further ruled that he would consider only petitionerís financial claims and the balance should be dismissed. With respect to petitionerís financial claims, respondentís then counsel represented to the hearing officer that payment was in process or had been made for the telephone calls, for payment of and/or reimbursement to petitioner, his insurance companies, and one or more of the studentís psychiatrists for testing and/or pharmacological evaluation. At the last day of the hearing, the attorney asserted that the only unresolved financial matters were questions regarding whether petitionerís mileage reimbursement claims should be adjusted for the correct IRS reimbursement rate and whether respondent should be required to make payment to petitioner for certain program or travel related expenses for meals, lodging, tolls, and/or parking without proper documentation (Transcript pp. 1504-05, 1516-18, 1529-32, 1612-15, 1659-60, 1662-64; Exhibit 18). In his November 16, 2001 decision, the hearing officer found against petitioner in all respects.
Petitioner argues that the hearing officer should have considered his claim that respondent improperly determined the number of credits his son student needed in order to graduate. Although neither an impartial hearing officer nor an SRO may pass upon the academic standards required by the State of New York for graduation, the factual question of whether a student has met the stated graduation requirements may be determined in a due process proceeding (Application of a Child with a Disability, Appeal No. 98-6). Petitionerís outstanding issue on appeal is whether work completed by the student in his United States History I and II classes at Grove would have reduced the 0.75 civics credits respondent had calculated that the student needed to graduate. I note, however, that there is no disagreement that the student had completed the additional civics instruction required of him to graduate (Transcript pp. 1203-4, 1217). The issue is therefore moot.
Petitioner contends that the hearing officer should have addressed his argument that his son should have been initially placed at the Brown School in Texas for the testing and pharmacological evaluation recommended at the August 2000 CSE meeting. Although he did not address it in his decision, the hearing officer ruled during the hearing that the issue was not a proper subject of the hearing. I agree with the hearing officer. The record indicates that the issue was the subject of an earlier hearing request, which had been resolved by petitionerís agreement to withdraw that request for a hearing in return for respondentís written agreement to pay for certain testing and evaluations elsewhere (Exhibit 4).
Petitioner argues that respondent ignored the Grove psychiatristís concern about his sonís functioning at the school and did not promptly schedule the testing and evaluation recommended at the August 2000 CSE meeting. Petitioner raised this months after respondent agreed, in October 2000, to reimburse him for the expenditures relating to the testing and pharmacological evaluation he decided to pursue at Yale and/or with affiliated physicians. At the time the hearing request was made and continuing through the hearing, there has been no claim by petitioner that testing or pharmacological evaluation approved at the August or October 2000 CSE meetings had not been done or that respondent was continuing to refuse to approve or schedule any testing. Respondent agreed to pay for all such testing, and the 2000-01 school year has long concluded. The State Review Officer is not required to determine issues which are no longer in controversy, or to make a determination which would have no actual effect on the parties (Application of a Child with a Disability, Appeal No. 98-73; Application of a Child Suspected of Having a Disability, Appeal No. 95-60). I find this issue to be moot. At the same time, I note that the record indicates that the BEAM test, which was recommended by Groveís psychiatrist and approved at the August 2000 CSE meeting and which has not been duplicated by any equivalent neurological test provided by petitioner, never took place. The CSE should consider whether any future IEP for the student should include provision for this test.
Petitioner asks that I consider certain issues relating to his sonís discharge from Grove in April 2001. He asserts that the studentís physical departure from that school was not supervised, that there was no transition plan in place in the IEP at the time he left the school, and that the CSE meeting to discuss the studentís subsequent educational program was not held until three weeks later on May 9, 2001. The hearing officer dismissed matters relating to the studentís departure from Grove prior to the end of the hearing and did not discuss them in his decision.
To the extent that petitioner complains that Grove did not properly supervise his sonís departure, I find that the private schoolís action is beyond my jurisdiction. Additionally, petitionerís concern about the absence of a transition plan when the student departed Grove was based on concern about his access to mental health, related, and community services immediately subsequent to that abrupt departure, rather than the extent to which his 2000-01 IEP sufficiently provided him with school to post-school activities pursuant to 8 NYCRR 200.4(d)(2)(viii) and (ix). The Regulations of the Commissioner of Education do not require that a CSE meeting be scheduled within any particular number of days after a request for such a meeting. However, it was appropriate for respondent to schedule the requested CSE meeting as soon as possible. Upon the limited record with respect to this issue, I cannot conclude that the delay in holding the CSE meeting was unreasonable.
Petitioner also challenges the adequacy of the IEP resulting from the May 9, 2001 CSE meeting, and argues that the hearing officer did not address issues raised at the hearing relative to that IEP. During the hearing, petitioner argued that the IEP did not address the studentís disabilities sufficiently and that it did not have an adequate transition plan. The hearing officer dismissed these claims during the hearing. This IEP has now been replaced as a result of subsequent CSE meetings. There is no current dispute regarding the studentís placement or the transition services to be provided to the student in accordance with 8 NYCRR 200.4(d)(2)(viii) and (ix) to promote his movement from school to post school activities. I will therefore not consider the studentís placement or the transition services provided to him in that IEP, as these issues are moot.
Petitioner argues that the hearing officer did not properly consider his claim that respondent required him to advance moneys and to use his insurance to pay for certain testing and evaluations recommended at the August and/or October 2001 CSE meetings. Respondent has an obligation to provide a free appropriate public education and it may not require petitioner to make payments in advance in order for his son to receive IEP services. There is evidence that, in the past, respondent may have required petitioner to advance moneys or to use private insurance, subject to subsequent reimbursement, to obtain IEP services for his son (Exhibit 4, Exhibit 17 of petition). However, there is no current controversy between the parties relating to this matter, which is moot (Application of a Child with a Disability, Appeal No. 98-73).
Petitioner raised a number of additional financial issues at the hearing, several of which involved the question of receipts or proper documentation. Petitioner contends that he should be reimbursed for expenses such as parking, tolls, and lodging associated with approved travel to and from Grove and/or to and from the location of the CSE recommended testing and pharmacological evaluation without the need to provide receipts documenting the expenses and the amount thereof. I agree with the hearing officer that respondent may require that payments be based upon submission of receipts and the payment of claims based on itemized vouchers that can be verified and audited. Petitioner also appeals the hearing officerís determination that respondent may deny reimbursement to petitioner for the cost of a train ticket because the name on the submitted documentation had a different first initial than the studentís (Exhibit 16, tab K). Petitioner testified that the ticket was used by the student for approved travel while he was at Grove and that the wrong first initial on the bill was an error (Transcript p. 1560). Respondent provided no contrary testimony and made no other objection to the documentation. I find that petitioner has submitted sufficient documentation to be reimbursed for this expenditure.
Petitioner also appeals the hearing officerís decision that respondent may make payment directly to Grove and not to the petitioner for travel moneys Grove advanced and billed to petitioner. Petitioner contends that respondent is obligated to make payment to him notwithstanding the absence of proof of his payment of the bill. Respondent may require proof prior to reimbursing petitioner for such travel expenses. Since petitioner did not submit proof of his payment of the subject travel expenses, respondent was not obligated to make direct payment to him of this requested amount.
Petitioner also contends that respondent should not be allowed to limit reimbursement for approved travel to the mileage reimbursement rate approved by the Internal Revenue Service. I concur with the hearing officer that respondent may use the IRS reimbursement rate for such reimbursement. I note here that petitioner had previously stated his agreement to adjusting his reimbursement requests to reflect the correct IRS rate (Transcript pp. 1428, 1507).
The parties disputed whether respondent should pay for certain telephone calls to Grove made by petitioner, whether respondent would be financially responsible for payment for or reimbursement of the cost of certain testing and pharmacological evaluation services for which the provider had not submitted a written report, and the status of respondentís payment to petitionerís insurance company for certain CSE recommended testing services. By letter and attachments dated October 4, 2001, prior counsel for respondent advised the hearing officer that respondent had made or would be making payment for all such disputed items and that these matters were no longer in dispute (Exhibit 18). The attached documentation included vouchers for checks totaling $8,641.35, three of which totaled $2,563.32 and were dated in October shortly before the last day of the hearing on October 10, 2001, as well as a letter to one of petitionerís insurance companies stating that a check for one of the vouchered October amounts was enclosed. Petitioner argued on the last day of the hearing that he had not received certain of the checks and respondent agreed that at least one of the checks to petitioner as well as a check to one of the insurance companies had not yet been sent. On the basis of respondentís representations that it would accept responsibility for all these previously disputed amounts and that it had and/or was in the process of making payment of such claims, the hearing officerís decision considered the underlying issues moot and did not address them.
Petitioner asserts that as of late December 2001, one of his insurance companies had not yet been paid, that one of the studentís physicians who had assisted in his pharmacological evaluation had not yet been fully paid, and that he had not yet been fully reimbursed for moneys he advanced for another portion of the studentís pharmacological evaluation (Verified Petition at Exhibit 19). The total of these amounts set forth as unpaid is more than $3,000. Respondentís answer does not directly address the exhibitís statements, nor does it include copies of any checks, cancelled or otherwise.
I agree with the hearing officer that respondentís representations that it had paid or would pay previously disputed items and the insurance company made those underlying issues moot. If respondent has yet to make payment of the sums that it represented it would pay, it should do so promptly.
Petitioner contends that the hearing officerís decision in effect allows respondent to use his private insurance benefits to the extent that his lifetime benefits will be reduced. The U.S. Department of Education has opined that public agencies may not require the parents of a child with a disability to use private insurance proceeds to pay for required special education and related services where the parents would incur a financial loss, such as diminution of lifetime benefits (20 IDELR 627; 16 EHLR 549). Petitionerís insurance company has paid IEP required services. Petitioner has testified that his insurance policy has limited lifetime benefits and argues that respondent has not made sufficient payments to his insurance company to maintain his lifetime benefit level. Respondent disputes that insurance payments have resulted in the diminution of petitionerís lifetime benefits and asserts that if they have, it will address the matter so that petitionerís lifetime benefit level is maintained (Transcript p. 1617). I find that the record does not afford a basis for me to resolve the issue. Petitioner should obtain documentation from his private insurance carrier of the alleged diminution of his lifetime benefits, and provide that to respondent, so the matter can be resolved.
I have carefully considered all other financial matters raised by petitioner on appeal. I find that respondent has reimbursed petitioner and/or made direct payments as required by law. I have also reviewed all other claims by petitioner and find them to be without merit.
Respondent should mail a copy of this decision to the student at his last known address.
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED;
IT IS ORDERED that the hearing officerís decision is hereby annulled to the extent indicated; and
IT IS FURTHER ORDERED that respondent shall make payments to petitioner as set forth herein.
Albany, New York
January 9, 2003