The State Education Department
State Review Officer
Application of a CHILD SUSPECTED OF HAVING A DISABILITY, by his parents, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the Warwick Valley Central School District
S. Jean Smith, Esq., attorney for petitioners
Shaw & Perelson, LLP, attorney for respondent, Lisa S. Rusk, Esq., of counsel
Petitioners appeal from an impartial hearing officer's determination upholding the decision of respondent's Committee on Special Education (CSE) declining to classify their son as a student with a disability, and denying their request to be reimbursed for the cost of his tuition while he was enrolled at the Family Foundation School. Petitioners challenge the hearing officer's determination and ask that I find their son should be classified as a child with a disability. The appeal must be dismissed.
This appeal involves a disagreement as to whether the student, who was diagnosed with attention deficit disorder (ADD), meets the eligibility criteria of a student with a disability for purposes of receiving special educational services under the Individuals with Disabilities Education Act (IDEA). The student was 18 years old at the commencement of the hearing and attending the Family Foundation School. He had been receiving accommodations since May 2001 for a diagnosis of ADD under a plan developed pursuant to Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. § 794) (Section 504 Plan). However, the CSE had determined at meetings on February 28 and May 8, 2002 that the student was not eligible to be classified as a child with a disability under the IDEA. His classification is in dispute.
The student was referred to the CSE by his parents in November 2001 (District Exhibit 2). The CSE held meetings February 28 and May 5, 2002 (District Exhibit 9; Transcript pp. 27, 29). At the February meeting, the CSE determined that the student was not eligible to be classified as a child with a disability under the IDEA (District Exhibit 9). The CSE concluded that the student did not demonstrate an educational disability, as he was learning. The CSE recommended continuing the student's Section 504 Plan (District Exhibit 9).
At the CSE meeting in May 2002, the CSE concluded a learning disability was not evidenced by the student, as a disorder was not present in his basic psychological processes and no discrepancy between expected and actual achievement (District Exhibit 9). The CSE determined the student did not qualify as emotionally disabled, as he did not exhibit any characteristics of that classification. The CSE further determined that although the student was diagnosed with ADD, the ADD did not adversely affect his educational performance. The CSE did not recommend classification of the student and recommended a high school mainstream program. The Section 504 Plan was not addressed by the CSE.
While he was enrolled at the Family Foundation School, the student underwent a comprehensive evaluation administered from January 2002 to April 2002, which included a social assessment (District Exhibit 3), an education evaluation (District 2), a psychological evaluation (District Exhibit 1), and a behavior assessment system for children (District Exhibit 8). The educational evaluator noted that the student's academic skills were on or above grade expectancy (District Exhibit 2). During the evaluation, he was cooperative and motivated. He also demonstrated good attention, concentration, effort, and task persistence. The Woodcock Johnson Tests of Achievement (WJ-R) and the Weschler Individual Achievement Test (WIAT) were administered to the student to assess academic achievement (District Exhibit 2). The student's weakest performance was in calculations, in which he achieved a standard (and percentile) score of 101 (53), yielding a grade equivalent of 12.9. The student's strongest performance was in writing samples, in which he achieved a standard score of 137 (99), yielding a grade equivalent of post high school, placing his academic achievement in the very superior range. Additionally, he achieved a standard score of 129 (97) on word identification, also placing his academic achievement in the very superior range. Two of the test results indicated he achieved within average range of scores, however, the rest of the results indicated his scores were in the above average to very superior range (District Exhibit 2).
On the WIAT, the student achieved a standard score of 120 (91) in written expression, which indicated his score was in the superior range. The evaluator concluded that the student's educational testing resulted in average to very superior academic achievement. The evaluator further stated the student's academic levels were on or above grade expectancy and he possessed the academic abilities to succeed in school (District Exhibit 2).
On April 24, 2002, while the student attended the Family Foundation School, a behavior assessment system for children (BASC) was administered (District Exhibit 8). This is an observational form which rates a student's behavior. In this instance, the student was observed by a school social worker, who concluded that all of the student's behaviors were in the average range. On the adaptive skills composite, his study skills, social skills, and leadership were in the average range. The observer noted no problematic behaviors.
The student's parents requested an impartial hearing on March 5, 2002 (District Exhibit 17), to challenge the CSE's failure to classify their son as a child with a disability. They are also seeking reimbursement for tuition they paid for their son to attend the Family Foundation School. The impartial hearing in this matter was conducted on three separate dates, concluding on September 24, 2002. In a decision dated November 25, 2002, the hearing officer determined that the CSE was correct in not classifying the student with a disability and further, denied petitioners' request for tuition reimbursement.
Petitioners argue in this appeal that their son's diagnosis of ADD and irritable bowel syndrome qualified him as a student with a disability under the IDEA. Petitioners further assert that they are entitled to an award of tuition reimbursement for their son's attendance at the Family Foundation School because the district did not provide a free appropriate public education (FAPE) for their son and because equitable considerations favor their claim for tuition reimbursement. Respondent argues that the student was not eligible for classification pursuant to the IDEA, as his ADD did not adversely impact his educational performance. Respondent also asserts the parents may not assert a claim for tuition reimbursement because the student did not qualify as a student with a disability and tuition cannot be awarded under those circumstances.
It is well settled that a board of education bears the burden of establishing the appropriateness of its CSE's recommendation that a student not be classified as a student with a disability (Application of the Bd. of Educ. of the Catskill Cent. Sch. Dist., Appeal No. 02-066; Application of a Child Suspected of Having a Disability, Appeal No. 00-001). In order to be eligible for a classification as a student with other health impaired, the IDEA requires not only that the student display the characteristic symptoms, but that the condition "adversely affects a student's educational performance" (34 C.F.R. 300.7[c][i]; 8 NYCRR 200.1 [zz]; J.D. v. Pawlett School Dist., 224 F. 3d 60 [2d Cir. 2000]). In this case, respondent does not dispute the student's diagnosis of ADD. In fact, the student received 504 accommodations after being diagnosed with ADD in March of 2001 (District 15, 16).
Upon reviewing the record, I must agree with the hearing officer that the district's CSE was correct when it declined to classify the student as a student with a disability, as his condition did not adversely affect his educational performance. An evaluator concluded that the student's academic skills were on or above grade expectancy, and no academic areas of weakness were noted (District Exhibit 2; Transcript p. 260). The evaluator also testified that the student's behavior during the evaluation was exceptionally cooperative and focused (Transcript p. 261). The evaluator observed and commented that the student persevered and was able to raise his level of effort as the examples became more challenging. Additionally, the evaluator testified that the student was able to deal with his ADD without using medications by using compensatory skills and coping mechanisms (Transcript p. 280).
The chairperson of the CSE testified that although the student was diagnosed with ADD, there was no adverse impact to his educational performance. She concluded the student performed extremely well on his evaluations, standardized tests and report cards and commensurate to his ability (Transcript pp. 64-65) and concluded that the student did not have an educational disability that required special education. The school psychologist also testified that the student did not qualify as a student with a disability. He concluded that the student's diagnosis of ADD was not preventing him from his ability to learn and he did not have any academic weaknesses (Transcript p. 163). He also concluded the student did not have any behavior problems. A social worker testified and agreed that the student did not have an educationally handicapping condition (Transcript p. 241). She also agreed with the CSE recommendation that the student was not eligible for special education. She based her conclusions on a social assessment and observation of the student in his classroom (Transcript p. 233). She observed the student was attentive, on task, and actively engaged and involved in the lesson by volunteering (District Exhibit 8; Transcript p. 237). The social worker did not observe any problem behaviors (District Exhibit 8).
Given the student's performance on achievement tests administered to him, classroom observation, and testimony offered by a school psychologist, a social worker and the chairperson of the CSE, I find the student is not eligible for classification as a student with a disability. While he is diagnosed with ADD, I find his ADD does not adversely affect his educational performance (Weixel v. Bd. of Educ., 287 F. 3d 138, 150 [2d Cir. 2002]; Corchado v. Bd. of Educ., 86 F. Supp. 2d 168, 176 [W.D.N.Y. 2000]; Application of a Child Suspected of Having a Disability, Appeal No. 00-009). Therefore, I must uphold the hearing officer's determination that he was not eligible for classification as a child with a disability.
Petitioners cannot assert their claim for tuition reimbursement unless the student was eligible for classification (20 USC 144 et seq). Since I found the student was not eligible for classification, it is not necessary to address petitioners' tuition reimbursement claim.
I have considered petitioners' other arguments and find them to be either unsubstantiated or otherwise without merit.
THE APPEAL IS DISMISSED.
Albany, New York
October 23, 2003