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 Clarkstown Central School District
Law Offices of Regina Skyer & Associates, attorneys for petitioners, Deusdedi Merced, Esq., of counsel
Lexow, Berbit & Associates, attorneys for respondent, Janet Rappe, Esq., of counsel
Petitioners appeal from an impartial hearing officerís decision denying their request to be reimbursed for the cost of their sonís tuition and related expenses at the RedCliff Ascent program during the 2001-2002 school year. The appeal must be dismissed.
There are two procedural issues that must be addressed. Respondent asks that I excuse its delay in answering the petition and accept its answer. The petition was personally served on May 7, 2003. An answer must be served within ten days of service of a petition (8 NYCRR ß 279.5). The tenth day after service was May 17, 2003, which was a Saturday. Respondentís deadline to answer was automatically extended to Monday, May 19, 2003 (8 NYCRR ß 275.8[b]). Respondentís answer was served on May 24, 2003. Respondent asserts that its counselís workload demands involving other impartial hearings prevented service of a timely answer. I note that my decision has not been delayed because of respondentís delay. Moreover, petitioners did not oppose respondentís request. Given the relatively brief delay and the absence of any injury to petitioners, I will accept respondentís answer.
Petitioners submit several documents for my consideration (Petition Attachments 2-4) to which respondent objects. Based on the facts and circumstances of this appeal, I will exercise my discretion and accept the documents contained in Attachments 2 and 3 to the petition as necessary to enable the State Review Officer to render a decision but decline to accept the documents contained in Attachment 4 to the petition. Respondent submits one document to its answer to which petitioners do not object. Based on the facts and circumstances of this appeal, I will exercise my discretion and accept the document attached to respondentís answer as necessary to enable the State Review Officer to render a decision (See, Application of the Bd. of Educ., Appeal No. 03-053; Application of the Bd. of Educ., Appeal No. 02-046; Application of a Child with a Disability, Appeal No. 01-061).
When the hearing began on August 30, 2002, the student was 18 years old and had graduated from respondentís district. In the fall of 1998, the student entered ninth grade at respondentís Clarkstown High School North. He was academically successful at the start of high school, receiving Bs in all of his core subjects. In tenth grade his grades and attendance began to deteriorate. Petitioners sought assistance outside the district and brought the student to an adolescent psychiatrist who concluded that there was nothing wrong with the student. In eleventh grade, his grades and attendance deteriorated even further and he received two Cs and two Ds in his core subjects. The student chronically missed the first two periods because he was unable to wake up. In an attempt to improve her sonís attendance, petitioner changed her work schedule so she could bring her son to school. She also sought assistance outside of the school district from a psychologist, a neurologist and a social worker. The social worker reportedly opined that the student was depressed. The neurologist reportedly concluded that the student suffered from attention deficit disorder and prescribed an anti-depressant that the student refused to take for more than two weeks. Petitioner reported that she met with the studentís teachers and guidance counselor throughout the school year and that they were aware of her attempts to get help for her son outside of the district.
At the beginning of twelfth grade, the student was placed by his parents in Storm King, a private residential day school. After three days the student was asked to leave Storm King because he failed to attend classes. Petitioner notified the studentís guidance counselor who scheduled a child study team meeting. The request for the meeting states that the reason for the meeting was because the student was not attending school and that the "parents have tried various professional interventions including a neurologist and a psychiatrist to no avail" (Parent Exhibit A). The student did not receive any academic instruction during this time, however petitioner indicated that in an attempt to improve the studentís attendance his guidance counselor changed his schedule and courses without success (Transcript p. 233; Parent Exhibit Z). On October 31, 2001, respondentís child study team met. One option the team recommended to petitioner to address the studentsí academic and emotional needs was the Rockland County Board of Cooperative Educational Services Intensive Day Treatment (IDT), a short-term crisis intervention program. On November 2, 2001, respondentís student assistance counselor made a referral to the IDT. The referral states that the student had difficulty waking in the morning and had anxiety coming to school. It further states that petitioners had taken the student to see a neurologist, psychiatrists and a social worker and that the student had been prescribed anti-depressants (Parent Exhibit AA). The student was admitted to the IDT on January 3, 2002. He was discharged a few weeks later due to lack of attendance. He earned one credit from the IDT program. Respondentís guidance counselor then recommended a program for nonclassified students with motivational issues, but the student refused to attend. On February 13, 2002, respondentís guidance counselor requested another child study team meeting. The meeting request states that the IDT and multiple schedule changes/accommodations seemingly had no effect on the student. On March 5, 2002, petitioners were notified that their son was suspended for five days (March 4-8, 2002) for failing to attend school. A child study team meeting was scheduled for March 7, 2002 but petitioner was unable to attend.
On March 7, 2002, petitioner referred her son to respondentís Committee on Special Education (CSE) (Parent Exhibit E). On March 11, 2002, respondentís school psychologist referred petitionersí son to the CSE (District Exhibit 8). A psychological evaluation was scheduled for March 20, 2002, but the student refused to go. The studentís behavior at home reportedly continued to deteriorate and on April 4, 2002, petitioners contracted with a private escort service to forcibly remove the student from his home and take him to the RedCliff Ascent program in Utah. On April 16, 2002, petitioners notified respondent that the student was at RedCliff Ascent and requested that the CSE evaluation process continue (Parent Exhibit I). A CSE meeting scheduled for May 7, 2002 was tabled due to lack of evaluations.
On May 23, 2002, the CSE met and reviewed a psychological evaluation provided by RedCliff Ascent, a social history conducted by the school district, the studentís medical history and report card. On that same date, the CSE developed an individualized education program (IEP) recommending that the student be classified as emotionally disturbed and recommending a residential placement when he returned from RedCliff Ascent until the end of the school year (District Exhibit 21). A summer IEP reflecting residential placement was also developed at this time (District Exhibit 28).
When the student returned from RedCliff Ascent, petitioner approached respondentís guidance counselor and principal regarding the transfer of credit from the RedCliff Ascent program. Unbeknownst to the CSE, respondentís principal awarded the student sufficient credits to graduate (Parent Exhibit W).
By letter dated June 21, 2002, petitioners requested an impartial hearing seeking tuition reimbursement for their unilateral placement at RedCliff Ascent and related travel and evaluation expenses (Parent Exhibit Q). Petitioners assert that respondent had failed in its child find obligations in failing to locate, identify, and evaluate the student notwithstanding the fact that petitioners made repeated requests for district assistance regarding the studentís emotional needs and his failure to attend school for a substantial amount of time. Petitioners claim that respondent, therefore, failed to provide their son with a free appropriate public education (FAPE) and are entitled to tuition reimbursement.
On January 15, 2003, the hearing officer found that respondent had met its child find obligations and that respondent acted to evaluate the student as soon as petitioners made a referral to the CSE. The hearing officer rejected the parents' assertion that school officials had reason to suspect that the student had a disability and should have referred the student to the CSE earlier. He denied petitionersí request for tuition reimbursement finding that respondentís recommended program was calculated to confer educational benefit, that the program selected by petitioners was not appropriate and that equitable considerations did not support petitionersí claim for reimbursement.
Petitioners seek review of the decision, claiming entitlement to reimbursement for the studentís tuition and related expenses because respondent violated the child find provisions of the Individuals with Disabilities Education Act (IDEA) denying the student the FAPE to which he was entitled under the IDEA and Article 89 of the Education Law.
Respondent argues that it did not violate the child find provisions and that any delay in classifying and providing services to the student was due to petitionersí deliberately withholding essential information that might have been relevant to a suspicion of disability, as well as their removing the student from the district without informing the district. Respondent contends that it appropriately utilized its child study team for purposes of pre-referral interventions and that petitioners could have referred the student to the CSE at any time. Finally, respondent asserts that the hearing officer properly denied tuition reimbursement because the RedCliff Ascent program was not an appropriate placement for the student and that equitable considerations do not support petitionersí claim.
The IDEA places an affirmative duty on state and local educational agencies to locate, identify and evaluate all children with disabilities residing in the state (20 U.S.C. ß 1412[a]; 34 C.F.R. ß 300.125[a][i]). This child find provision includes "children who are suspected of being a child with a disabilityÖand in need of special education, even though they are advancing from grade to grade" (34 C.F.R. ß 300.125[a][ii]). To satisfy that requirement a board of education must have procedures in place that will enable it to find such children. Because the child find obligation is an affirmative one, the IDEA does not require parents to request that the district evaluate their child. The child find duty is triggered when the state or local educational agency has reason to suspect a disability and reason to suspect that special education services may be needed to address that disability (Application of a Child with a Disability, Appeal No. 02-092; Application of a Child Suspected of Having a Disability, Appeal No. 01-082).
The record reveals that the student was successful in school through the ninth grade during which he received Bs in all of his core subjects. In tenth grade the studentís grades and attendance began to deteriorate. By eleventh grade, the studentís grades and attendance significantly declined even further and he received two Cs and two Ds in his core subjects (Parent Exhibit W; District Exhibit 12D). The student was virtually without instruction since the beginning of his senior year. While a studentís failure to perform academically because of absence does not per se afford a basis to suspect that the student has a disability (Application of a Child with a Disability, Appeal No. 02-092; Application of a Child Suspected of Having a Disability, Appeal No. 01-082), I disagree with the hearing officerís finding that there was no evidence in the record to suspect that the student had a disability prior to his referral to the CSE on March 7, 2002. Based on the information before me, I conclude that respondent had sufficient information to warrant a referral by the fall of 2001. Petitioners indicate that they kept the studentís teachers and guidance counselors informed regarding their attempts to help their son through private interventions by a psychiatrist, psychologist, social worker and neurologist. Respondent asserts that it was not aware of these efforts until after petitioner made a referral to the CSE (Transcript pp. 113-115). However, the evidence establishes that respondent, in fact, was aware of such information in the fall of 2001. Prior to October 2001, after speaking to petitioner about her son who had been expelled from a private school for lack of attendance, respondentís guidance counselor requested a child study team meeting because the student was not attending school and the "parents have tried various professional interventions including a neurologist and a psychiatrist to no avail" (Parent Exhibit A). On October 31, 2001, respondentís child study team met with petitioner and discussed the student. As a result of the meeting, respondentís team referred the student to the Rockland County Board of Cooperative Educational Services Intensive Day Treatment (IDT) program, a short-term crisis intervention program (Parent Exhibit A; District Exhibits 31, 32; Transcript pp.163, 332). The IDT referral dated November 2, 2001, states that the student had difficulty waking in the morning and had anxiety coming to school. It further states that petitioners had taken the student to see a neurologist, psychiatrists and a social worker and that the student had been prescribed anti-depressants (Parent Exhibit AA). These documents indicate that respondentís professional staff members were, in fact, provided with information by petitioner that should have given them reason to suspect that the student had a disability and that special education services may be needed to address that disability and led to a referral to the CSE.
In addition, it is unclear why the child study team did not directly refer the student to the CSE in October 2001. Respondentís associate superintendent of pupil services testified that the decision of the child study team to refer a student to the CSE was made on an individual basis. In this case, the district was aware during the 2000-2001 school year (eleventh grade) that the studentís grades and attendance were declining significantly. While the parties disagree as to what information the parents provided to the district in 2000-2001, at the initial child study team meeting, held two months into the studentís senior year, it is clear from the record that the district was aware of the parentsí unsuccessful attempts to address the studentís needs through the use of medication and by consulting with private professionals. Given the circumstances at hand, the late date in the studentís educational career, coupled with the districtís decision to wait until the twelfth grade to refer the student to the child study team, the child study team should have referred the student directly to the CSE for evaluation rather than attempting pre-referral interventions first. As such, I find that, because the studentís problems had extended across several school years and he had virtually been without instruction since the beginning of his senior year, respondentís delay in referring the student to the CSE for evaluation was unwarranted (Department of Educ., State of Hawaii v. Cari Rae S., 158 F.Supp. 2d 1190 [D. Hawaii 2001]; Application of a Child Suspected of Having a Disability, Appeal No. 01-082). I note that respondent asserts that, as a special educator, petitioner bears some responsibility for failing to refer her son to the CSE at an earlier date. I find that the fact that petitioner is a special educator in another school district does not negate respondentís child find responsibility under IDEA.
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 parentís claim (Burlington School Comm. v. Depít of Educ., 471 U.S. 359 ). There is no dispute in this appeal with respect to the studentís classification. As such, he would have been entitled to special education services under IDEA which, having abrogated its child find responsibility, respondent failed to provide.
To warrant an award of tuition reimbursement, petitioners bear the burden of proving the appropriateness of the services provided by RedCliff Ascent during the 2001-2002 school year (Application of a Child with a Disability, Appeal No. 02-092; Application of a Child Suspected of Having a Disability, Appeal No. 01-082). To meet that burden, petitioners must show that the private school offered an educational program that met the studentís special education needs (Burlington School Comm. v. Department of Educ., 471 U.S. 359, 370 ). As a preliminary matter, I agree with the hearing officerís determination that the fact the respondentís principal awarded the student credit for his participation in the program is not dispositive as to whether the program was appropriate under the IDEA for tuition reimbursement purposes. Based on the information before me, I find that petitioners have failed to demonstrate that the RedCliff Ascent program was appropriate.
In March 2002, petitioner completed the Connersí Parent Rating Scale (Parent Exhibit F). The school psychologist stated that the results of that assessment suggested that the student was anxious, oppositional and emotionally labile. In addition, the following behaviors, typically associated with attention deficit disorder were noted: restlessness, hyperactivity, impulsivity and inattentiveness. In April 2002, the psychologist at RedCliff Ascent diagnosed the student with depressive disorder NOS and oppositional defiant disorder (Parent Exhibit K). She noted that the student presented with Aspergerís-like traits in that he had difficulty developing peer relationships, perseverated on certain topics, had difficulty with changes in routine and displayed limited social reciprocity. She reported that the student had difficulty taking anotherís perspective and misperceived or distorted environmental and social cues. The studentís IEP indicated that his emotional issues and poor anger control negatively impacted his learning and school attendance (District Exhibits 21, 28). Goals and objectives addressed improving self-awareness/self-concept, improving socially acceptable behaviors in the school environment and improving decision-making skills. Petitioners do not dispute the appropriateness of the May 23, 2002 IEP.
The only witness petitioner presented from the RedCliff Ascent program was the studentís primary therapist. While both the therapist and petitioner testified that the student had improved as a result of the program, there is no documentation in the record to support their assertions. The therapist testified that he was the studentís primary therapist and that the program was clinically based. Yet the record contains no clinical notes outlining the studentís treatment while he was at RedCliff Ascent, nor any follow up projective testing or behavioral checklists. As a result, it is not clear if the problems identified by the RedCliff Ascent psychologist and reflected on the studentís IEP were addressed during his counseling sessions. Specifically, there is no information whether the studentís depressive symptoms or self-awareness had improved. Nor is there a discussion of specific strategies the student had been taught to deal with conflict or emotional distress. Testimony from the student's primary therapist and petitioner related to the studentís relationship with his family and not to school performance.
The student's primary therapist noted that, although the student was able to work through problems on a cognitive level, on an emotional level he had demonstrated less progress. Petitioner reported that the student still lacked motivation for success. Yet according to the studentís IEP and the psychological evaluation conducted by RedCliff Ascent, emotional difficulties and lack of motivation were the precise reasons the student was referred to RedCliff Ascent by his parents. In addition, it does not appear that school related goals were made a part of his program. Based on the information before me, I find that petitioners did not meet their burden of proving that the program they obtained for their son was appropriate to address his special education needs, nor did it in fact, meet those needs.
Having found that petitioners failed to demonstrate the appropriateness of the program they obtained for their son, their claim for tuition reimbursement must be denied.
In light of my decision, I need not consider the other issues raised in this appeal.
THE APPEAL IS DISMISSED.
Albany, New York
November 14, 2003
ROBERT G. BENTLEY