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 Manhasset Union Free School District
John J. McGrath, Esq., attorney for petitioner
Ingerman, Smith, L.L.P., attorney for respondent, Susan M. Gibson, Esq., of counsel
Petitioner appeals from an impartial hearing officerís decision which denied her request for a reclassification of her child, a request for reimbursement for certain privately obtained evaluations, reimbursement for privately obtained tutoring services, an expungement of grades for certain courses during the 2001-2002 and 2002-2003 school years and an order directing that respondent place petitionerís child in the high school math honor society. The hearing officer found that respondent had offered to provide an appropriate educational program for petitionerís daughter, that petitionerís daughter had been appropriately classified and denied all of petitionerís remaining requests. The appeal must be dismissed.
As an initial matter, respondent claims that the petition was not served within the timeframe required under 8 NYCRR 279.2. However, the petition was initially served on respondent's attorneys who were not specifically authorized to accept service on behalf of the respondent district. I find that no prejudice resulted from this delay and, under the specific circumstances presented here, I will consider the petition.
Petitionerís daughter was 16 years old and in the 11th grade at the Manhasset Senior High School at the time of the hearing. Since she entered high school, the student has been placed in or elected to enroll in honors or advanced placement courses on multiple occasions.
When the student was in eighth grade, her mother expressed her concerns about her daughterís academic needs in high school. A meeting was held with the middle school psychologist, the high school principal and counselor and the parent to address the parentís concern. In May 2000, a private neuropsychological evaluation was obtained by the parent because of her concerns for the girl's declining academic grades. The evaluation was discussed at that meeting and it was agreed that ninth grade teachers would provide periodic reports for the parent.
The student was described as having difficulty knowing how to study, and forgetting to turn in assignments. A pattern of procrastinating, anxiety over assignments, avoiding homework and study with subsequent poor grades was described. The girl reported that the problem had recently become greater due to a very demanding school load. A very discrepant pattern of behavior was described. The girl was well controlled in school. She was aggressive and impulsive at home, fighting often and loudly with her mother. Psychologist reports indicated intellectual ability in the superior to very superior range. Academic abilities were also reported to be superior to very superior, with the exception of spelling which was average. Written language skill subtests ranged from superior in syntax to below average in thematic maturity.
As a ninth grade student, she was enrolled in honors math and biology, receiving above average final grades in both. Her lowest final grades for that year were grades of C in French and physical education. Final teacher comments were positive. For the third quarter of that year, report card comments indicated the student was not prepared for class in English, lab reports were missing, and she was absent on days of assessment for Science Research. In tenth grade, the girl received a final grade of D in advanced placement European History. The teacher indicated that the student actively contributed to the class and the grade did not reflect this effort. The studentís work was described as not satisfactory for the AP level course. Teacher comments through out that year indicated good effort and participation in classes.
In January 2001, the parent again expressed her concerns about the studentís academic performance and suggested that the girl may have a learning disability in written expression. The high school counselor recommended that the girl participate in the general education Writing Center. The parent was also told that she could request a Committee on Special Education (CSE) referral and further evaluations from the District if she wished.
The parent, counselor and high school psychologist met in May 2001. The parent reported that her daughter was overwhelmed, she continued to have behavioral and emotional difficulties and had been hospitalized for a suicide attempt that the parent said was not an "actual" suicide attempt, but merely meant to scare the mother. The school psychologist told the parent that the evaluation did not support a classification of learning disabled (LD), but might support a classification of emotionally disturbed (ED). The parent was opposed to the ED classification. The psychologist explained to the parent the procedure for a referral to the CSE.
Following this meeting the District completed the evaluations required by the CSE. The parent and CSE met in September 2001. The parent requested a classification of speech/language impaired based on the studentís poor performance on a single subtest. The CSE found no basis for a speech /language disability and the parent would not consider the offered classification of ED. The parent then determined that she would secure an additional psychological evaluation because she believed the existing one from 2000 was inaccurate. The CSE recommended that the student participate in some general education support services, but the student did not do so.
The CSE reconvened in January 2002 at the parentís request. Petitioner did not have any additional evaluations to offer at that time, but requested that the girl be identified as LD and be provided with testing modifications for her mid-term exams. Although the student was receiving therapy privately, the therapist was not available for the CSE meeting. An additional independent psychological evaluation was forwarded to the District in early April. By that time the student was being medicated for an attention deficit disorder. The evaluating psychologist was invited, but did not attend. She conducted some more in-depth writing reading evaluations. She also requested that the girlís teachers complete questionnaires. Her evaluation results were consistent with those of the initial evaluation. This psychologist identified a written expressive disorder, attention deficit hyperactivity disorder (ADHD) and difficulty with mood regulation. Her findings differed from those of the previous evaluation in that more emphasis was placed on the areas in which she did additional evaluations. She recommended: assistance in essay writing and study skills, extended time for reading and tests, withdrawal of the student from her AP history class, less rigorous academic courses that recognize her strengths and weaknesses, mental health services, and summer courses in the studentís areas in which the student feels confidence (Petitionerís Exhibit 4).
The parent did not request a CSE meeting, but requested an impartial hearing. However, on the first hearing date it was agreed to hold a CSE meeting to review the new evaluation. On April 22, 2002 the CSE met and reviewed the evaluation. The CSE eventually agreed to a classification of multiply disabled (MD) because this designation was able to incorporate the studentís emotional issues and ADHD diagnosis. The parent and her attorney agreed to the classification. (Respondentís Exhibit 25) The CSE recommended that the student participate in the learning lab for one period a day and receive counseling once in each six-day cycle. The CSE also recommended extended time on tests and in-class essay assignments. It was agreed that the goals and objectives for the individualized education program (IEP) be written at a subsequent meeting. The parent withdrew her request for a hearing.
When the studentís schedule was changed to accommodate the Learning Lab the parent requested that the student be removed from the program and returned to her study hall. An offer was made to hold another CSE meeting, but the parent did not agree. A Sub-committee meeting was held on May 20, 2002, but was adjourned because the parent was ill. She subsequently wrote to the school psychologist indicating that she was opposed to the Learning Lab because she did not see how it would benefit her daughter. She asked that the IEP be written to reflect this opinion. The parent was informed that if she disagreed with the placement in the Learning Lab, she needed to request a CSE meeting. Instead, the parent requested another impartial hearing on June 11, 2002. She withdrew that request, but again requested an impartial hearing on July 26, 2002. At that hearing the impartial hearing officer denied all of petitionerís requests and this appeal ensued.
A board of education bears the burden of establishing that there is an adequate basis to suspect that a student may have an educational disability (Application of a Child Suspected of Having a Disability, Appeal No. 94-38; Application of a Child Suspected of Having a Disability, Appeal No. 94-10; Application of a Child Suspected of Having a Disability, Appeal No. 94-3; Application of a Child Suspected of Having a Disability, Appeal No. 94-1). In meeting its burden of proof, a board of education need not demonstrate that a student has a disability, but that there is an adequate basis to suspect the existence of a disability which impairs a student's educational performance (Application of a Child Suspected of Having a Handicapping Condition, Appeal No. 92-17; Application of a Child Suspected of Having a Handicapping Condition, Appeal No. 91-29). A board of education must also demonstrate what, if any, attempts have been made to remediate a student's performance (Application of a Child Suspected of Having a Disability, Appeal No. 94-1; Application of a Child Suspected of Having a Handicapping Condition, Appeal No. 92-17; Application of a Child Suspected of Having a Handicapping Condition, Appeal No. 91-33).
Respondentís CSE classified petitionerís daughter as having multiple disabilities.
Multiple disabilities means:
[C]oncomitant impairments (such as mental retardation-blindness, mental retardation-orthopedic impairment, etc.), the combination of which cause such severe educational needs that they cannot be accommodated in a special education program solely for one of the impairments. The term does not include deaf-blindness. (8 NYCRR 200.1[zz]).
However, petitioner contends that her child should be appropriately classified as having a learning disability.
Learning disability means:
[A] disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written, which manifests itself in an imperfect ability to listen, think, speak, read, write, spell, or to do mathematical calculations. The term includes such conditions as perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia and developmental aphasia. The term does not include learning problems that are primarily the result of visual, hearing or motor disabilities, of mental retardation, of emotional disturbance, or of environmental, cultural or economic disadvantage. A student who exhibits a discrepancy of 50 percent or more between expected achievement and actual achievement determined on an individual basis shall be deemed to have a learning disability. 8 NYCRR 200.1[zz]
There is substantial evidence in the record before me to indicate that the classification offered by respondent is appropriate. At the impartial hearing below, petitionerís own expert could not determine the appropriateness of the offered MD classification and program. However, respondentís witnesses provided a satisfactory analysis that the MD classification appropriately responded to the childís ADHD diagnosis coupled with her emotional problems. Clearly, the record indicates that the childís emotional problems are substantial and are related to her uneven academic achievement. Indicators of emotional problems such as a suicide attempt are scattered throughout the record. The finding that the childís learning problems are related to an emotional disturbance in itself precludes the classification of LD which has been proposed by petitioner. As a result, I find that the classification offered by respondent is appropriate.
With respect to petitionerís request for reimbursement for her unilaterally obtained private evaluations and for compensatory tutoring, I am unable to do so. There is nothing in the record to suggest that petitioner requested further evaluations from the district or that the district refused to provide any such evaluations. There is also no showing that the compensatory tutoring was necessary given the classification and program offered by respondent. Given that there is no showing that the district acted inappropriately in this instance, I find that petitioner is not entitled to compensation for the additional evaluations obtained or for any compensatory tutoring.
Finally, petitioner requests that I expunge certain grades that are contained in her daughterís academic school record and that she be admitted to the schoolís math honor society. Petitioner has not supplied me with any authority to suggest that I am able to accommodate this request and I am not aware of any. Accordingly, I must also agree with the hearing officer below and deny petitionerís request that I expunge her daughterís grades and further deny her request that I direct the respondent to admit petitionerís daughter to the school math honor society.
In accordance with my findings and assessment herein and upon my review of the record, I find that the hearing was conducted consistent with the requirements of due process, and that there is no need to modify the order of the hearing officer (34 C.F.R. ß 300.501[b]; Education Law ß 4404). I therefore adopt the findings of fact and determination of the hearing officer. I have considered the petitionerís remaining arguments and find them unpersuasive.
THE APPEAL IS DISMISSED.
Albany, New York
November 14, 2003
ROBERT G. BENTLEY