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 White Plains
Neal H. Rosenberg, Esq., attorney for petitioner
Ingerman Smith, L.L.P., attorneys for respondent, Ralph C. DeMarco, Esq., of counsel
Petitioner appeals from that part of the decision of an impartial hearing officer which denied her request for tuition reimbursement for the cost of her daughter's tuition at an out-of-state private residential facility from May 1, 2002 through June 27, 2003. Respondent cross-appeals from the hearing officer's finding that the program it recommended was inappropriate. The appeal must be dismissed. The cross-appeal must be dismissed.
Petitioner's daughter was 16 years old in the 11th grade in the CEDU High School and residential facility in Running Springs, California at the time of the hearing. CEDU, a private facility, has not been approved by the Commissioner of Education to contract with school districts for the education of children with disabilities. Petitioner's daughter is classified by respondent's Committee on Special Education (CSE) as emotionally disturbed (ED). There is no dispute about the student's classification.
The student was first referred to the CSE on January 29, 2002 by her mother, who expressed concern about her daughter's lack of interest and motivation in academics (Exhibits D-4 p. 6, D-48). Standardized testing indicates that the student is of high average intelligence, and academic evaluations indicate above average academic performance (Exhibit D-4 pp. 22-29). The student has a diagnosed sensory neural hearing loss for which she has a hearing aid she refuses to wear, but there is no indication that her hearing loss interfered with her academic performance (Exhibit D-4). She also has a diagnosis of an attention deficit hyperactivity disorder (ADHD) for which she takes medication (Transcript pp. 867-68). Her ADHD reportedly affects her ability to organize and complete school assignments (Transcript p. 776).
The student began to experience some academic difficulty in ninth grade at White Plains High School, and in tenth grade she began to miss classes. Her grades declined to the point where she was unable to pass certain courses because of nonattendance (Exhibit 58). At this time, the student was also experiencing difficulties at home, staying out past curfew, sneaking out late at night, and using recreational drugs.
Subsequent to a principal's hearing in December 2001 to address her continued nonattendance, the student was transferred to the Community School at Rochambeau (Community School) (Exhibit P-G). The Community School is a White Plains City School District alternative school with a higher teacher-student ratio, designed for students who are struggling and/or failing in the regular school environment. The Community School is described as being set up in a therapeutic manner but is not a therapeutic support program, and it is not a special education program (Transcript pp. 418-20).
At the Community School the student's attendance deteriorated further, as did her behavior at home. On January 29, 2002, the student's mother referred her to the CSE for evaluation. Petitioner provided written consent, on February 13, 2002, for specific evaluations to be conducted (Exhibit D-14). On February 22, 2002, the student's mother had her admitted to Four Winds Hospital for psychiatric evaluation and treatment, before the CSE could conduct its evaluations. She was discharged one week later and returned to the Community School with a diagnosis of depressive disorder not otherwise specified (NOS), for which medication was prescribed (Exhibits D-4, D-51). The discharge plan indicated there was no need for a residential placement for the student (Transcript p. 242). When the student returned to school, the CSE conducted a social history, a classroom observation, a psychological evaluation, and achievement testing (Transcript p. 46; Exhibit D-4).
At a meeting of the CSE on April 18, 2002, petitioner reported episodes of verbal aggression at home, but no one reported behavioral concerns in the classroom other than the student's failure to attend classes she did not like and to complete assignments. Petitioner expressed a preference for residential placement at CEDU and rejected a proposal to place her daughter in respondent's STAR secondary school program for students with emotional disabilities located on the campus of New York Hospital in White Plains because she was an employee of the hospital (Transcript pp. 70, 830-31; Exhibit D-13). Notations from the meeting purportedly recording petitioner statements pertaining to special education and classification read as follows: "SE piece is only to get her class. I am only here to play w. sys. I work at N Y Hosp. I see how the sys works. I don't really care about class." (Transcript pp. 472, 849-52; Exhibit D-13). The CSE determined that additional information was needed. A psychiatric evaluation was recommended and the parent agreed to visit specific programs, operated by the Board of Cooperative Educational Services (BOCES) and operated by private schools (Exhibits D-12, D-13).
Petitioner's consent to conduct a psychiatric evaluation was requested on April 25, 2002 and received on May 2, 2002 (Exhibits D-10, 11, 44). The psychiatric evaluation was scheduled for May 10, 2002 (Transcript p. 56). The CSE was to convene the following week but, in response to the parent's request for a meeting at an earlier date, the CSE convened on May 7, 2002, before the scheduled psychiatric evaluation (Exhibit D-40). At this meeting, the CSE classified the student as emotionally disturbed and recommended placement in a self-contained special education therapeutic day program for adolescents with substance abuse problems, known as West-Prep, operated by the Southern Westchester BOCES at the Westchester Medical Center (Exhibits D-2, D-9). West-Prep had already reviewed a referral packet for the student and determined that she might be eligible for placement in the program, pending an intake interview. An individualized education program (IEP) was prepared for the remainder of the 2001-02 school year that recommended moving the student from the Community School to a program operated by BOCES, such as West-Prep, or an approved private school with individual and group counseling and special transportation (Exhibit D-2). Neither the intake interview for West-Prep nor the psychiatric evaluation was conducted because the student was unilaterally placed by her mother in the CEDU High School and residential facility on May 10, 2002. The CSE chairperson confirmed by letter dated May 14, 2002 that petitioner reported on May 10, 2002 that her daughter would not be available that day for the scheduled psychiatric evaluation because she was taken to California early that morning (Exhibit D-35). The CSE chairperson expressed disappointment that the student was not made available for the evaluation and reported that the CSE was in the process of arranging a "network" meeting to identify community services to assist petitioner's family while a placement was being finalized (Exhibit D-35).
A CSE meeting to review the student's placement for the 2002-03 school year was scheduled for June 24, 2002 but cancelled at petitioner's request (Exhibits D-8, D-32). The rescheduled annual review meeting took place on August 30, 2002 and an IEP was prepared for the 2002-03 school year which recommended placement of the student in West-Prep with special transportation (Exhibit D-1). With the exception of petitioner, the student's father and her grandfather, the CSE agreed that the least restrictive appropriate placement for the student was a day program rather than a residential program (Transcript p. 164). Petitioner disagreed with the IEP and requested a hearing on September 20, 2002 (Exhibit D-17). The hearing took place on November 20, November 21, November 22 and December 3, 2002. In her decision, the hearing officer determined that the issues before her included petitioner's challenge to the student's two IEPs for the periods May 10, 2002 to June 25, 2002 and September 5, 2002 to June 27, 2003, respectively, as well as petitioner's claim for reimbursement for those periods and for prospective reimbursement for the period from June 27, 2003 to June 2004, when her daughter is expected to graduate from CEDU High School.
The hearing officer found that respondent failed to offer the student an appropriate program for the period from May 10, 2002 to June 25, 2002 or for the 2002-03 school year because the CSE did not conduct a functional behavioral assessment (FBA) and because the IEPs failed to describe her present levels of performance in sufficient detail. In addition, while finding that "the comprehensive evaluation data developed by the CSE strongly suggests that BOCES West-Prep would be an ideal program for (the student)," the hearing officer nevertheless concluded that the CSE's recommendation was premature because she would not be admitted into the program without an intake interview, which was not conducted. The hearing officer denied petitioner's request for reimbursement upon a finding that CEDU is not the least restrictive environment (LRE) for her daughter and that the evidence did not support the need for residential placement or the appropriateness of CEDU for the student. The hearing officer found that the equitable considerations do not support petitioner's claim for reimbursement based upon her failure to make her daughter available for a psychiatric evaluation scheduled by respondent and an intake interview at West-Prep, as well as her failure to explore "network" services for support with problems in the home and community. I agree.
Petitioner seeks an award of tuition reimbursement. 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 School Comm. v. Dept. 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 ).
Petitioner contends that respondent's delay in placing her daughter left her no choice but to place the student on an emergency basis at CEDU. Petitioner contends that the IEP for the period from May 15, 2002 until June 25, 2002 should be considered a nullity as it was only continuing an inadequate placement and was not received until the school year had almost ended. Petitioner contends that the IEP for the period from September 5, 2002 to June 27, 2003 should also be considered a nullity as it fails to cite any class size with a ratio, lacks program specificity and cannot be provided within a school day of six and one-half hours, i.e., a special class out-of-district for 330 minutes a day, a 30 minute 1:1 counseling session and a 30 minute 5:1 counseling session as well as lunch. Petitioner alleges that this IEP was prepared without any attempt by respondent to involve CEDU. Petitioner alleges that her daughter suffered the same problems at the Community School that she had at White Plains High School and the CSE should have scheduled a psychiatric evaluation in advance of the April 18, 2002 meeting. Petitioner alleges, inter alia, that her daughter progressed at CEDU and that neither BOCES West-Prep nor any day program was appropriate for her daughter but that respondent made it clear to her that no residential placement would be considered.
Respondent cross-appeals and seeks review of that part of the hearing officer's findings of fact and decision that found that it failed to offer the student an appropriate program for the period from May 10, 2002 to June 25, 2002, and for the 2002–03 school year. Respondent contends that both IEPs accurately and sufficiently describe the student's present levels of performance and were sufficiently designed by the CSE to address the student's emotional disability in a small, highly supervised special education self-contained setting providing high school level credit-bearing instruction and intensive clinical and substance abuse services throughout the school day. Respondent alleges that the CSE's failure to obtain an acceptance from West-Prep was due exclusively to petitioner not making her daughter available for the intake interview, and therefore the IEPs should not be rendered void. Respondent contends further that the hearing officer erred when she found that the CSE should have conducted an FBA, which was not necessary to ascertain the physical, mental, behavioral and emotional factors which contribute to the student's emotional disability.
I will first consider respondent's cross-appeal from the hearing officer's determination that it failed to offer a free appropriate public education (FAPE) to petitioner's daughter. A board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (Application of a Child Suspected of Having a Disability, Appeal No. 93-9; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Handicapped Child, 22 Ed Dept Rep 487 ). 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 ). The recommended program must also be provided in the LRE (34 C.F.R. §300.550[b]; 8 NYCRR 200.6[a]; 34 C.F.R. §300.347, Appendix A, Section 1, Question 1; 8 NYCRR §200.4[d]).
An IEP is a written statement for a child with a disability that is developed, reviewed, and revised at least annually, with full participation of concerned parties, that includes: (1) the child's present level of educational performance; (2) the annual goals for the child, including short-term instructional objectives; (3) the specific educational services to be provided to the child, and the extent to which the child will be able to participate in regular educational programs; (4) the transition services needed for a child as he or she begins to leave a school setting; (5) the projected initiation date and duration for proposed services; and (6) objective criteria and evaluation procedures and schedules for determining, on at least an annual basis, whether instructional objectives are being achieved (20 U.S.C. §1414[d]); 34 C.F.R. §300.347, Appendix A, Section 1, Question 1; 8 NYCRR §200.4[d]).
An appropriate educational program begins with an IEP which 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. 02-014; Application of a Child with a Disability, Appeal No. 01-109; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). Federal and state regulations require that an IEP include a statement of the student's present levels of educational performance, including a description of how the student's disability affects his or her progress in the general curriculum (34 C.F.R. §300.347[a]; 8 NYCRR 200.4(d)(2)). School districts may use a variety of assessment techniques such as criterion-referenced tests, standard achievement tests, diagnostic tests, other tests, or any combination thereof to determine the student's present levels of performance and areas of need (34 C.F.R. Part 300, Appendix A, Section 1, Question 1).
The hearing officer found that a CSE cannot formally recommend a placement in a non-district facility prior to a decision by the facility to accept the child as a student. I concur, based on the facts presented here, where acceptance depended on the student successfully completing an evaluative intake interview. The record includes testimony by the BOCES supervisor that an intake interview is required for West-Prep, a program that does not accept students who do not indicate a willingness to commit to the program (Transcript pp. 358-60). The school psychologist testified that no intake interview was conducted because the student was at CEDU. Therefore, I am compelled to find that the CSE's formal recommendation of West-Prep was premature, and that respondent has not met its burden of proving that it offered to provide an appropriate placement (Application of a Child with a Disability, Appeal No. 01-078; Application of a Child with a Disability, Appeal No. 00-020; Application of a Child with a Disability, Appeal No. 98-32).
In the instant case, the hearing officer found the IEPs failed to describe the student's present levels of performance in sufficient detail. I concur. Pursuant to the Regulations of the Commissioner of Education, an IEP must include a description of the student's present levels of performance and needs with regard to academic achievement, social development, physical development, and management needs (8 NYCRR 200.4[d][i]). This student's IEP did not adequately identify her present levels of performance and needs. Present levels of performance and need statements should, among other things: report the present levels of performance and indicate the individual needs of the student in four areas (academic, social, physical, and management); consider special factors (e.g. behavior); and identify how the disability affects the student's involvement in the general curriculum (8 NYCRR 200.4[d]; 34 C.F.R. Part 300, Appendix A, Section 1, Question 1). Cursory statements of performance levels and needs, as in the instant case, are not in compliance with the IEP content requirements of state and federal law (Application of a Child with a Disability, Appeal No. 00-058). Here, the IEPs reported the student's performance on the Wechsler Adult Intelligence Scale-III (WAIS-III) on April 9, 2002 as yielding a verbal IQ score of 102, a performance IQ score of 125 and a full scale IQ score of 112, in the high average range of intellectual ability (Exhibits D-1, D-2). Her standard (and percentile) scores on the same date on the Wechsler Individual Achievement Test-II (WIAT-II) were reported as: Word Reading 104 (61), Reading Comprehension 117 (87), Pseudoword Decoding 111 (77), Reading Composite 111 (77), Numerical Operations 108 (70), Math Reasoning 115 (84), Mathematics Composite 114 (82), Spelling 120 (91), Written Expression 125 (95), and Written Language Composite 127 (96), (Exhibits D-1, D-2). The hearing officer found, however, that the IEPs failed to explain the student's scores on the WAIS-III and WIAT-II and inadequately described the student's level of educational performance because it contained no information about the student's performance and progress in the general high school curriculum, whether she is failing or passing her courses, whether she has taken any Regents exams or is on track to graduate with her class, and that she has talent in the area of art. The IEPs described her present levels of educational performance as "rarely brings in home assignments;" "does not study for assigned activities;" "does not read in preparation for assigned activities;" "is easily distracted from tasks;" "has adequate reading comprehension, decoding skills, math skills, writing skills, comprehension skills, and adaptive daily living skills;" "demonstrates a visual learning style" and "needs to improve study skills." The hearing officer found that the IEP statements were cursory and should have more thoroughly explained the student's ADHD to support the goals of improvement in her organization, study skills and attending skills. Similarly, the hearing officer found the IEPs inadequately stated the student's present levels of performance in developing relationships with peers and adults, self-concept, social adjustment to the school and community environment and behaviors that impede the learning process. Specifically, the IEPs state only that the student's "behavior is immature and impulsive" and that her "classroom behavior moderately interferes with instruction," but do not reflect the "abundance of information" gathered by the CSE about the student's emotional and behavioral needs (Exhibits D-1, D-2) and do not provide enough information for the CSE to do appropriate planning in this critical area. I concur that these statements on the IEPs do not provide sufficiently detailed information.1
I also agree with the hearing officer's determination that an FBA should have been conducted as part of the evaluative process and considered in the formulation of the IEPs. Where behavior impedes a student's learning, and here the parties agreed it did, the CSE must properly assess that behavior as an initial step in developing an appropriate IEP (8 NYCRR 200.4[b][v]; Application of a Child with a Disability, Appeal No. 01-094; Application of the Bd. of Educ. of the City Sch. Dist. of the City of Glen Cove, Appeal No. 01-060). To properly assess behavior, a functional behavioral assessment should be developed to determine why the student's behaviors occurred and the impact of the behavior on the child's learning (Application of a Child with a Disability, Appeal No. 00-081). As noted by the hearing officer, the student's initial referral to the CSE was based in large part on behaviors impeding her learning, such as: missing classes, lying to authority figures, lack of impulse control during school, and substance abuse. I agree with the hearing officer's finding that an FBA would have assisted the CSE in understanding these behaviors and developing an appropriate response.
Not all errors in the formulation of an IEP result in an educational program that is not reasonably calculated to provide educational benefits (Application of a Child with a Disability, Appeal No. 02-015). However, respondent's recommendation of a placement that may not have accepted the student, the failure to have sufficiently detailed IEP statements of present levels of performance and need, and the failure to conduct an FBA cumulatively rose to the level of denying this student a FAPE (see, Evans v. Bd. of Educ. of Rhinebeck Cent. Sch. Dist., 930 F. Supp. 83, 93[S.D.N.Y. 1996]).
With respect to the second criterion for an award of tuition reimbursement, the student's parent bears the burden of proof with regard to the appropriateness of the services selected during the 2001-02 and 2002-03 school years (Application of a Child with a Disability, Appeal No. 95-57; Application of a Child with a Disability, Appeal No. 94-29; Application of the Bd of Educ. of the Monroe-Woodbury Union Free Sch. Dist., Appeal No. 94-34). In order to meet that burden, the parent must show that the private school offered an educational program which met the student's special education needs (Burlington School Comm. v. Dept. of Educ., 471 U.S. 359, 370 ; Application of a Child with a Disability, Appeal No. 94-29). The private school need not employ certified special education teachers, nor have its own IEP for the student (Application of a Child with a Disability, Appeal No. 94-20). While parents are not held as strictly to the standard of placement in the 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 [1st Cir. 2002]; M.S. v. Bd. of Educ., 231 F.3d 96 [2d Cir. 2000]).
The hearing officer concluded that CEDU is not an appropriate placement for the student based in part on the fact that no one from CEDU testified at the hearing. The hearing officer determined that the only credible clinical support offered by petitioner for the CEDU placement was the testimony of a social worker who treated the student briefly during her stay at Four Winds Hospital and saw her privately six times after her discharge. Her testimony was found to be equivocal on the student's need for residential placement and her knowledge of CEDU was limited to reading about it on-line. The hearing officer found her testimony not to be persuasive on the point of whether residential placement in CEDU was necessary for the student to receive educational benefit, particularly because she acknowledged that some students with the same profile are able to make progress in less restrictive settings.
The hearing officer did not find credible the testimony of the physician witness who testified on petitioner's behalf. First, she was found to be biased because she appeared in support of her personal friendship with petitioner, from whom she obtained much of her information about the student. Secondly, the witness never treated or tested the student and the only contact she had with her was in social situations when visiting petitioner. Thirdly, she did not have access to or review any of the student's clinical treatment records and was unaware that petitioner's daughter had never received special education services before going to CEDU. The hearing officer found the testimony of petitioner, the student and the student's father to be self-serving and lacking necessary detail about the educational and clinical aspects of the CEDU placement. I find that there is no basis in the record for me to substitute my judgment for that of the hearing officer's judgment regarding witness credibility (Application of a Child with a Disability, Appeal No. 01-019).
I find there is insufficient persuasive evidence in the record to indicate that the program that was actually offered to the student at CEDU was appropriate. The reports offered into evidence list certain subjects with letter grades assigned to the student. However, they do not contain sufficient detail as to what was actually covered and the criteria for grading. This makes it difficult to determine if the curriculum and instruction was appropriate for the student. Moreover, the record indicates that the student was taking only two academic courses per session (Transcript pp. 192, 529; Exhibit D-4). Although petitioner and her daughter testified that CEDU was beneficial, there are no standardized test scores or other objective evidence to measure the student's progress. Likewise, there is no documentation that her individual needs are being met through any specialized instruction (Transcript pp. 749-50).
For these reasons, I concur with the hearing officer's determination that petitioner did not meet her burden of proving that the private residential placement at CEDU she obtained for her daughter was appropriate. I also concur with the hearing officer's determination that equitable considerations do not support petitioner's claim for reimbursement based on her failure to make her daughter available for the psychiatric evaluation scheduled on May 10, 2002 and for the West-Prep intake interview, as well as her failure to consider network services in the community to support the family. Petitioner thereby deprived respondent of the ability to make an appropriate program recommendation and finalize the IEP placement at West-Prep. I concur with the hearing officer's findings that the need for the student's removal on May 10, 2002, the date of the scheduled evaluation, was not supported by the record and obstructed the IEP process (20 U.S.C. 1412 [a][C][iii]).
Petitioner raises numerous other contentions and allegations that I have considered and find without merit.
THE APPEAL IS DISMISSED.
THE CROSS-APPEAL IS DISMISSED.
Albany, New York
December 16, 2003
PAUL F. KELLY
1Because of the cumulative inadequacies in formulating the IEPs, I need not determine here whether the failure of the IEPs to have sufficiently detailed present levels of performance statements, in and of itself, denied the student a FAPE.