The State Education Department
State Review Officer
Application of a CHILD WITH 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 Harrison Central School District
Family Advocates, Inc., attorneys for petitioners, RosaLee Charpentier, Esq., of counsel
Ingerman Smith, L.L.P., attorneys for respondent, Susan M. Gibson, Esq., of counsel
Petitioners appeal from the decision of an impartial hearing officer denying their request for tuition reimbursement for part of the 2001-02 school year during which their son was not yet classified by respondent's Committee on Special Education (CSE) and they had unilaterally placed him at the Westfield Day School (Westfield Day), and for another part of the school year after the CSE had classified him as emotionally disturbed (ED) and developed an individualized education program (IEP) with which his parents disagreed. The appeal must be dismissed.
Respondent raises as an affirmative defense petitioners' failure to serve their petition within 40 days of their receipt of the hearing officer's decision and asks me to dismiss the petition (8 NYCRR 279.2 [b]). Petitioners received the hearing officer's decision on November 12, 2002, and served respondent with the petition on January 2, 2003, 51 days later. However, petitioners ask that I accept the late petition on the grounds that the delay was attributable to an error by an overnight mail delivery service. According to an affidavit submitted by an employee at petitioner's counsel's office, the notice and petition for review were mailed to petitioner on December 10, 2003 for the purpose of having petitioner arrange timely service on the district. The affidavit further states that the mail service subsequently acknowledged that the legal documents were not delivered nor was notification to the sender made until December 24, 2003 of the failure to deliver. Apparently, petitioner received the mailing on December 30, 2003. Respondent did not respond to or controvert assertions made in the affidavit. I find that petitioners' delay was for good cause, and I will excuse the late petition in this case (Application of a Child with a Disability, Appeal No. 97-18; Application of the Bd. of Educ. of the Wappingers Cent. Sch. Dist., Appeal No. 91-35). I do however caution petitioner's counsel to ensure that proper and timely service take place in future appeals.
When the hearing began on June 26, 2002, the student was fifteen years old and had just completed the equivalent of the ninth grade at Westfield Day, which he attended from September 2001 through January 2002, and then again from May 14, 2002 until the end of the school year on June 14, 2002 (Parent Exhibits 20, 31; Transcript pp. 645, 781, 789). Petitioners' son is of average intelligence, and standardized achievement tests have generally indicated that his academic performance is commensurate with his cognitive ability (District Exhibit 6). He was classified by respondent's CSE as ED at its April 25, 2002 meeting. His current classification is not in dispute, but his parents claim that respondent's CSE should have classified him earlier at its August 24, 2001 meeting and provided him with special education services for the 2001-02 school year. They claim that respondent's failure to do so entitles them to tuition reimbursement for the period during which they placed their son at Westfield Day, a private therapeutic day school for underachieving students. According to its director, Westfield Day is approved by the New York State Education Department as a nonpublic school for students with learning disabilities in grades seven through twelve, but has not been approved as a school with which school districts may contract to instruct students with disabilities (Parent Exhibit 23; Transcript pp. 759, 766).
While in sixth grade during the 1998-99 school year, the student began to experience protracted episodes of belching, usually during the evening, which interfered with his sleep (Parent Exhibits 10, 11; District Exhibit 7; Transcript pp. 536, 541-42). His parents referred him to the CSE in April 1999, after his psychiatrist suggested evaluation for the presence of learning disabilities (District Exhibit 7; Parent Exhibits 4, 11; Transcript p. 84). An educational evaluation revealed that his performance on achievement testing was within the average range. Although there was no evidence of learning disability, the evaluator identified areas of relative weakness in arithmetic, planning, organization and sequencing (Transcript p. 87; District Exhibit 8). The student's guidance counselor noted that the student was seeing a psychiatrist for separation anxiety and family stressors thought to be related to the uncontrolled burping (Parent Exhibit 11). The school psychologist recommended remedial math, a study skills support class, and continuation of sessions with his psychiatrist to address separation anxiety (District Exhibit 6). His academic grade point average for the third quarter of sixth grade was 82.9 (Parent Exhibit 12). When the CSE convened on May 27, 1999, it determined that the student was not eligible for classification. His final grades included a 74 in math, a 76 in science, an 83 in social studies and an 82 in language arts (Parent Exhibit 12). He was absent 22 days and tardy 19 days in sixth grade (District Exhibit 29).
When he was in seventh grade during the 1999-2000 school year, the student received remedial math and language arts support services in a general education setting (District Exhibit 20; Transcript p. 89). At a parent-teacher conference on October 20, 1999, the student's mother reported that the student's episodes of burping had stopped and his therapy had been discontinued. However, she expressed concern that his grades were low despite his average achievement test scores (Parent Exhibits 29, 30; District Exhibit 9, 13). The committee suggested that the student continue therapy due to his anxiety (District Exhibit 45). At a parent-teacher conference on March 9, 2000, it was determined that the student should use an agenda book and his parents should review his homework to make sure he completed it (Transcript p. 92). Arrangements were made to provide extra help in science, Spanish and math (District Exhibit 46). At the end of seventh grade, his final grades included 66 in math, 66 in science, 75 in social studies, 71 in reading, and 85 in Spanish (District Exhibit 13). He was absent six times and tardy eight times that year (District Exhibit 29).
Petitioners referred their son to the CSE again in September 2000, at the beginning of his eighth grade year (Parent Exhibit 13; District Exhibit 20). An educational evaluation indicated that his achievement test results were commensurate with his full scale IQ score of 98, as measured on the Wechsler Intelligence Scale for Children-Third Edition (WISC-III) (District Exhibit 19). In a report dated October 20, 2000, the school psychologist noted that the student's problems with anxiety, social stress and fatigue were interfering with his ability to apply his skills consistently to his academic work. He recommended that the student continue in remedial classes and that the CSE further evaluate the student's emotional status and ability to attend (District Exhibit 20). When the CSE convened on November 2, 2000, it reviewed a social history, a classroom observation, the psychological evaluation and the educational evaluation (District Exhibits 17-20; Transcript pp. 96-99). It determined that the student was not eligible for classification at that time (Parent Exhibit 17; District Exhibit 43). There is no evidence in the record that the CSE acted upon the school psychologist's suggestion to further evaluate the student's emotional status.
In May and June of 2001, the student's parents had him undergo an independent psychological evaluation. It revealed weaknesses in auditory attention and memory, perceptual organization, executive functions, math, and reading comprehension (District Exhibit 24). The evaluator concluded that the student was "demonstrating characteristics of non-verbal learning disability" (NVLD). Although a rating scale completed by his teachers in May 2001 indicated that he did not have severe attentional deficits (District Exhibit 22), the psychologist concluded that he did have an attention deficit disorder (ADD), "particularly in the area of organization and difficulty in the maintenance of attention." Personality testing revealed anxiety, and the evaluator suspected an underlying tic disorder and mild depression associated with the student's excessive belching. She recommended that the CSE consider a classification that would "capture both the psychiatric and ADD concerns" and recommended a number of modifications and strategies (District Exhibit 24). The student was absent approximately 25 days, and tardy approximately 15 days in eighth grade, and his report card reflected final grades of 69 in English, 69 in science, 78 in social studies, 79 in Spanish and 68 in math, as well as comments by two teachers that his absences disturbed his learning (District Exhibits 28, 29).
The CSE convened on August 24, 2001 to review the independent psychological evaluation. It also reviewed an August 8, 2001 letter from the student's physician reporting a diagnosis of anxiety disorder and tic disorder and noting that the student was taking an antidepressant (Parent Exhibits 1, 3, 7). The CSE determined that it required more information to rule out eligibility for classification as ED or other health impaired (OHI), and the parents agreed to submit information from the student's psychiatrist at a future meeting (District Exhibit 30; Transcript pp. 112, 216). Petitioners claim that they informed the CSE at that time that they were enrolling their son at Westfield Day (Transcript pp. 571-73), but the director of special education testified that they did not inform the CSE until the fall (Transcript pp. 112, 804).
When the CSE reconvened on November 1, 2001, it reviewed a letter from the student's psychiatrist that indicated the student had diagnoses of anxiety, depression and ADD and recommended the student repeat eighth grade in a different school (District Exhibit 26). The student's English teacher explained at the meeting that all eighth graders felt anxiety due to eighth grade state assessments (District Exhibit 32). Petitioners informed the committee that their son was taking medication for ADD (Exhibit 31). The CSE determined that the student was not eligible for ED classification, concluding that his emotional needs had not adversely affected his academic performance in eighth grade. The CSE referred the student to the Section 504 committee, which met the same day and recommended accommodations to address his ADD and anxiety, such as extended time for tests, use of a calculator, and directions read or explained (Parent Exhibit 19; District Exhibits 31-33).
By letter dated November 9, 2001, the parents stated their objection to the CSE's decision not to classify their son under the Individuals with Disabilities Education Act (IDEA), and asserted that the Section 504 accommodations would not be adequate to address his needs (District Exhibit 2). By a second letter dated January 22, 2002, they requested an impartial hearing for the purpose of obtaining a classification for their son (District Exhibits 2, 4). On January 23, 2002, petitioners withdrew their son from Westfield Day and enrolled him at the Westchester Magnet Academy (Westchester Magnet), a new program available to students from public schools, where he was placed in an inclusion classroom (Transcript pp. 123, 433-35, 441).
The student's grades at Westchester Magnet were in the 60's and 70's; however, his teachers reported that he was behaving strangely, perseverating on certain topics, developing new nervous tics, and talking to himself (Parent Exhibit 25; Transcript pp. 124-26). A second psychiatric evaluation conducted on April 16, 2002 revealed that the student was hearing voices at home and at school telling him to hurt himself (District Exhibit 35). The psychiatrist noted that the student had tried many different medications for ADD, insomnia and anxiety, with mixed results. He was diagnosed with major depressive episode with psychotic features, anxiety disorder not otherwise specified (NOS) with panic attacks, attention deficit hyperactivity disorder (ADHD), predominantly inattentive type, transient tic disorder, learning disorder NOS (nonverbal learning disorder) and parent-child relational problems. The psychiatrist recommended that the student continue with private therapy, participate in family therapy, receive school counseling and educational modifications, and consider taking an antidepressant, with possible treatment for auditory hallucinations. She opined that the student's psychiatric condition exerted a negative impact on his academic learning and performance.
The CSE convened on April 25, 2002 and recommended that the student be classified as ED, based on the psychiatrist's report and the report from Westchester Magnet that the student's anxiety was interfering with his academic performance (Parent Exhibit 5). Rather than disrupt the student by arranging for a new placement for the remaining weeks of the 2001-02 school year, the CSE recommended continuation at Westchester Magnet, with a shortened day to permit him to arrive at school later. The CSE recommended counseling once a week, plus a tutor for one hour a day in English and math. The CSE also recommended investigation of therapeutic environments for the student for 2002-03 (District Exhibit 5, 39). At the meeting, the parents agreed with the CSE recommendation and expressed their belief that their son should not change schools again (Parent Exhibit 5; Transcript p. 584).
Petitioners notified the district on April 29, 2002, however, that they were rejecting the CSE recommendation and placing their son again at Westfield Day, because they believed he needed a program with a therapeutic component (District Exhibit 37). On May 30, 2002, the parents sent a letter requesting tuition reimbursement and costs (District Exhibit 5). The hearing began on June 26, 2002 and continued until September 20, 2002.
In his decision of November 8, 2002, the hearing officer ruled that there was insufficient evidence to conclude that the student was eligible to be classified at the August 2001 meeting of the CSE. He also noted that the district provided Section 504 accommodations at its November 2001 meeting, and that district personnel were attempting to find the appropriate setting. He also found the program recommended by the CSE at its April 25, 2002 meeting for the remainder of the 2001-02 school year was appropriate based on the student's needs at the end of the school year, and that the CSE's intention was to carefully plan for an appropriate placement for 2002-03. He therefore denied the parents' request for tuition reimbursement.
Petitioners challenge the CSE's failure to classify their son at the August 24, 2001 CSE meeting as a child with a disability pursuant to the IDEA (20 USC 1400 et seq) and its state counterpart, Article 89 of the Education Law, and claim that based on its failure to classify him and develop an IEP, he was deprived of a free appropriate public education (FAPE). They further claim that the IEP developed at the April 25, 2002 meeting was inappropriate. They seek tuition reimbursement for the first half of the 2001-02 school year when he had not yet been classified by the CSE, but was unilaterally enrolled at Westfield Day, and for the last few weeks of the 2001-02 school year after the CSE classified him as ED and recommended placement at Westchester Magnet, but was placed again at Westfield Day.
A board of education may be required to pay for educational services obtained for a student by his or her parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent's claim (Burlington Sch. Comm. v. Dep't of Educ., 471 U.S. 359 ). The failure of a parent to select a program known to be approved by the state in favor of an unapproved option is not itself a bar to reimbursement (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 ). A board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (M.S. v. Bd. of Educ. of the City Sch. Dist. of the City of Yonkers, 231 F.3d 96, 102 [2d Cir. 2000]; Application of a Child with a Disability, Appeal No. 02-092; Application of a Child with a Disability, Appeal No. 03-058). To meet its burden, a board of education must show that the recommended program is reasonably calculated to confer educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176 ).
In addition, respondent bears the burden of establishing the appropriateness of a CSE's recommendation that a student not be classified as a child with a disability (Application of a Child Suspected of Having a Disability, Appeal No. 03-064; Application of a Child Suspected of Having a Disability, Appeal No. 02-085; Application of a Child Suspected of Having a Disability, Appeal No. 01-107). A CSE must adequately evaluate a student to identify the nature and extent of the child's disability. The initial evaluation of a student suspected of having a disability must include a physical evaluation, a psychological evaluation, a social history, a classroom observation, and such other assessments or evaluations as are necessary to make an appropriate recommendation (8 NYCRR 200.4[b]; Application of the Bd. of Educ. of the Monticello Cent. Sch. Dist., Appeal No. 02-008).
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]). The student must not only manifest one of the characteristics, but the emotional disturbance must adversely affect the student's academic performance (Muller v. Committee on Special Education of East Islip Union Free Sch. Dist., 145 F.3d 95, 103-04 [2d Cir. 1998]).
When the CSE first evaluated the student in April and May 1999, the CSE did not have enough information to lead it to conclude the student met any of the characteristics necessary to be eligible for ED classification. It was aware only that the student was having difficulty with burping episodes, sleep disturbance and anxiety, and that he had been seeing a child psychiatrist for separation anxiety and family stress. At the time, his grades were close to a B average, and the school psychologist recommended only that he continue his sessions with the psychiatrist. Although the student's grades dropped and he had difficulty completing his assignments the next year when he was in seventh grade, his parents reported that the burping episodes had stopped, and he was only absent from school a total of six times. At a parent-teacher conference requested by his parents, school staff suggested that he continue with therapy for his anxiety (District Exhibit 29).
When the student's parents referred him to the CSE for the second time in 2000-01 at the beginning of his eighth grade year, his emotional status had begun to deteriorate further. This time, the school psychologist reported that the student had severe attentional problems, and significant social stress and anxiety associated with peer interaction and lack of control. The student's teachers reported learning problems "in terms of [his] ability to understand and complete school work." Most notably, the school psychologist wrote in October 2000 that "despite average intelligence and good achievement skills, [the student] appears to have significant problems in applying these abilities and sustaining his efforts in school and at home. Problems in attention, anxiety, social stress, and fatigue are leading to feelings of learned helplessness." Indeed, the psychologist recommended that the CSE further evaluate the student's emotional status and inability to attend (District Exhibit 20). Thus, when the CSE convened on November 2, 2000, it had information to suggest the student might be eligible to be classified under the IDEA as ED. The CSE should have followed up on the recommendation of its school psychologist to evaluate the student further. When it did not do so, the parents paid for an independent evaluation and requested another CSE meeting.
I find that when the CSE convened nine months later on August 24, 2001, and made the recommendations at issue in the instant case, it had sufficient information to support a determination that the student was eligible for ED classification at that time. At the August 2001 meeting, the CSE had before it the May 2001 independent psychological evaluation, which indicated that petitioners' son had an anxiety disorder, ADD, characteristics of a non-verbal learning disability, a suspected tic disorder and mild depression. It also reviewed a letter from the student's physician that corroborated the diagnoses of anxiety disorder and tic disorder and noted that the student was taking an antidepressant (Parent Exhibits 1, 3, 7). Thus, there was sufficient information that the student met two or three of the characteristics of emotional disturbance: a tendency to develop physical symptoms or fears associated with personal or school problems, a generally pervasive mood of unhappiness or depression, and inappropriate types of behavior or feelings under normal circumstances.
In addition, the CSE was aware at the August meeting that the student's psychiatric problems were having an adverse impact on his educational performance. The record reflects that he had been late or tardy 40 school days and had barely passed 3 of his major subjects (District Exhibits 28, 29). Although the independent evaluator recommended to the CSE that it "consider a classification that included the psychiatric and ADD concerns," the CSE requested that the parents provide more information from the student's psychiatrist in order to "rule out" eligibility for ED or OHI classification (District Exhibit 30).
When the CSE met in November 2001, it reviewed a letter from the student's psychiatrist reporting what the psychologist and physician had stated earlier: that the student had psychiatric diagnoses of anxiety, depression and ADD. In addition, the psychiatrist recommended that the student repeat eighth grade in another school (District Exhibit 26). However, the CSE still found the student ineligible for ED classification, reasoning that his emotional needs had not adversely affected his academic performance in eighth grade (District Exhibit 32; Transcript pp. 285-85; 193, 197).
The CSE erred when it declined to find the student eligible under the IDEA as a student with a disability at its August 24, 2001 and November 2, 2001 meetings, despite its knowledge from various evaluations that the student's anxiety and depression and other concerns had risen to clinically significant levels that had adversely affected his educational performance, as evidenced by his poor attendance and low grades (Venus Indep. Sch. Dist. v. Daniel, 2002WL550455 [N.D.Tex.2002]; Application of a Child Suspected of Having a Disability, Appeal No. 99-073). Since the CSE failed to recommend that petitioners' son receive any special education services to meet his educational needs, I find that respondent has failed to meet its burden of proof with respect to the appropriateness of its program for the 2001-02 school year until it classified the student and developed an IEP at its April 25, 2002 CSE meeting.
However, the parents also object to the IEP developed by the CSE at its April 25, 2002 meeting, at which the student was finally classified ED. They assert that the proposed program lacked a therapeutic aspect, and that no goals or objectives were developed at the meeting. An appropriate program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs, establishes annual goals and short-term instructional objectives related to those needs, and provides for the use of appropriate special education services (Application of a Child with a Disability, Appeal No. 93-12; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).
I find that the April 25, 2002 IEP accurately reflects and addresses the student's needs and is reasonably calculated to provide educational benefit (District Exhibit 36). The student's special education teacher from Westchester Magnet was present at the meeting and participated in the development of an appropriate program based upon her knowledge of the student's performance in inclusion classes (Transcript pp. 449-53). The director of special education testified credibly that goals and objectives for the student's IEP were discussed at the April 25, 2002 CSE meeting (Transcript pp. 804-06). The IEP provided for placement at Westchester Magnet, where the total enrollment of 55 students satisfied the student's need for a smaller school environment (Transcript p. 435). The proposed inclusion classes were integrated, and the special education teacher who worked with the regular education teacher was familiar with the student and able to assist in monitoring both his academic and emotional status (Transcript pp. 463, 441-44). The CSE responded to the parents' desire that their son continue with private therapy, and recommended support services of individual counseling once per week (Transcript pp. 258-59). The recommended program allowed the student to start the school day during the lunch hour at 10:30 to accommodate his inability to get up in the morning (Transcript p. 450). He would then be provided a tutor for English and math at the end of the school day. Further, recommendations to reduce stress and anxiety made by the parents' independent evaluator were incorporated into the IEP, such as frequent breaks between assignments, frequent praise, and minimizing written work. I find that the IEP reflects careful planning by the CSE in its efforts to assist the student through the completion of the remaining weeks of the school year without requiring the added stress of a change of location by providing a program which was individualized to meet this student's unique emotional needs (Transcript p. 455).
Based on my finding that respondent offered to provide a FAPE for the remaining weeks of the 2001-02 school year, petitioners are not entitled to reimbursement for their son's attendance at Westfield Day from May 14, 2002 until June 14, 2002. However, respondent would be required to reimburse petitioners for the cost of educational services obtained for the student between September 2001 and January 2002 if, in addition to my finding that respondent failed to provide him with a FAPE during that period, the services selected by the parent were appropriate, and equitable considerations support the parent's claim (Burlington Sch. Comm. v. Dep't of Educ., 471 U.S. 359 ). The failure of a parent to select a program known to be approved by the state in favor of an unapproved option is not itself a bar to reimbursement (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 ). While parents are not held as strictly to the standard of placement in the least restrictive environment (LRE) as school districts are, the restrictiveness of the parental placement may be considered in determining whether the parents are entitled to an award of tuition reimbursement (Rafferty v. Cranston Pub. Sch. Comm., 315 F.3d 21, 26-27; M.S. v. Bd. of Educ., 231 F.3d at 105).
Given the record before me, I find that the parents did not meet their burden of proving the program at Westfield Day was appropriate. The record contains very little evidence that the program meets the student's educational needs. The director of Westfield Day was unable to provide specific information about the educational component of the program offered by his school. He testified that he did not know if any educational evaluations of the student had been conducted while he attended Westfield Day (Transcript p. 768). He could not provide information about the type of classes the student had, or the students with whom he took classes (Transcript pp. 758-62). The director explained that he was not an educator, but a certified social worker and counselor and that he provided the student's therapy sessions (Transcript pp. 725, 728, 767). He testified that Westfield Day followed the New York State curriculum, but students were not placed in grades (Transcript p. 754).
Further, I agree with respondent that Westfield Day was not the LRE for the student (Application of a Child with a Disability, 01-084). The director testified that the school had a total enrollment of only four students when petitioners' son started there in September 2001, and contained only three classrooms and individual consulting rooms (Transcript pp. 751-52). He thought there was one other student who was the same age as petitioner's son, and the two other students were two or three years older (Transcript pp. 752-55). The student received one-on-one instruction in some of his academic subjects and received instruction in a "large group" for others, according to the director, but had no opportunity to participate in mainstream classes (Transcript pp. 753, 763, 782). There was no evidence that the student required the one-on-one instruction provided at Westfield Day. Having considered the nature and extent of the student needs, I find that a less restrictive environment than that at Westfield Day was appropriate for the student (Application of a Child with a Disability, Appeal No. 01-109). Accordingly, petitioners have failed to meet their burden of proving the appropriateness of the services obtained for their son at Westfield Day during the 2001-02 school year.
Since respondent offered an appropriate program for the period between May 14, 2002 until June 14, 2002 petitioners are not entitled to tuition reimbursement related to that period of time. Further, because petitioners have not prevailed with respect to the second of the three criteria necessary for an award of tuition reimbursement for the 2001-02 school year, I find that petitioners are not entitled to such relief.
THE APPEAL IS DISMISSED.
Albany, New York
December 16, 2003
PAUL F. KELLY