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
Neal Howard Rosenberg, Esq., attorney for petitioners
Lexow, Berbit & Associates, P.C., attorneys for respondent, Warren E. Berbit, Esq., of counsel
Petitioners appeal from an impartial hearing officerís decision which denied their request for reimbursement of the cost of their sonís tuition at two out-of-state private residential facilities during the 2001-02 school year and the first 19 days of July 2002. The appeal must be dismissed.
Petitionersí son was 17 years old when the impartial hearing began in August 2002. At that time, petitioners did not request further educational services from respondent. Instead, their son had already been discharged from the second of two private residential facilities and was registered to attend a high school equivalency program at Rockland Community College in September 2002.
Petitionersí son was diagnosed with an attention deficit hyperactivity disorder (ADHD) and initially classified as learning disabled when he was entering the second grade in 1992. He attended regular education classes supplemented with resource room and counseling.
As part of a triennial review in 1998 when the student was in seventh grade, the school psychologist administered the Wechsler Intelligence Scales for Children Ė III (WISC-III) and the Wechsler Individual Achievement Test (WIAT). The WISC-III yielded a verbal IQ score of 124, a performance IQ score of 113 and a full scale IQ score of 121 indicating that the student was functioning in the superior range of intellectual ability. The studentís achievement on the WIAT indicated uneven development of skills ranging from the 16th to the 95th percentile (District Exhibits 67, 68). The psychological report notes that the student exhibited attention seeking and acting out behaviors and that he had a history of resistant behavior towards schoolwork and homework (District Exhibit 67).
As part of a triennial review in February 2001, the school psychologist reported that the student who was then in tenth grade continued to demonstrate significant behaviors such as being disruptive in class and cutting class frequently (District Exhibit 65). While the report states that the school attempted to improve the studentís behavior, it indicates that he was unwilling to change and that his behavioral difficulties continued. Further, the student was close to failing all of his classes, and his teachers reported inappropriate behavior, lack of cooperation and lack of respect for other students. The school psychologist did not administer updated intellectual and academic testing at petitionersí request. At the time of the evaluation, the student was attending respondentís North Senior High School, but petitioners wanted him to attend a smaller structured school (District Exhibit 65). On February 14, 2001, respondentís Committee on Special Education (CSE) recommended that the student attend Rockland Academy, a Board of Cooperative Educational Services (BOCES) alternative high school with small class sizes, for the remainder of the school year (District Exhibit 64).
When the CSE convened in May 2001 to prepare the studentís individualized education program (IEP) for eleventh grade, it recommended continuation of the same program. Later that month, however, the student was suspended from school, and petitioners requested that the CSE explore placing their son in the Twilight program, a BOCES special education program at Nyack High School, for the 2001-02 school year (Transcript p. 29). On July 17, 2002, the CSE convened and recommended placement in a self-contained class with a 12:1+1 student to teacher ratio at the Twilight program. The studentís classification as learning disabled continued at that time (District Exhibit 54).
In early September 2001, the student was arrested for petit larceny based on allegations that he took a two-way radio from his volunteer ambulance company without permission, received one hundred dollars from a potential purchaser on an internet auction site and intentionally did not send the radio to the purchaser (District Exhibit 52). On October 9, 2001, petitioners arranged to have their son hospitalized when he threatened suicide, but he was released from the hospital the next day. By letter dated October 12, 2001, the principal at BOCES suspended the student for five days for failing to follow directions, using improper language toward a teacher and persistently disturbing class by provoking other students with racial slurs (District Exhibit 51). During the suspension period, BOCES allowed petitionersí son to audit a special education program at Hudson Valley High School so petitioners could consider other educational options for their son. However, petitionersí son would not willingly attend the school, and petitioners felt compelled to bribe him to attend just a few days (Transcript pp. 311-312).
On October 25, 2001, petitioners had their son admitted to Redcliffe Ascent, a wilderness program located in Utah. Redcliff Ascent is an outdoor-based experiential therapeutic program for adolescents who have "avoided or delayed their developmental progress" (Transcript p. 417). After the BOCES principal advised the CSE chairperson that petitioners had placed their son in an out-of-state facility, the chairperson scheduled a committee meeting.
The CSE convened on November 27, 2001. Petitioners delivered a letter stating that "(we) hereby give notice to the Clarkstown School District that we will be placing our son at a private placement at public expense" (Transcript pp. 38-39, District Exhibit 43). Petitioners provided consent for an evaluation and a release of information for Redcliff Ascent (District Exhibits 45, 46). The CSE changed the studentís classification from learning disabled to emotional disturbance and recommended that the student be placed in the BOCES special education program at Hudson Valley High School. The change of classification to emotional disturbance is not in dispute in this appeal.
The CSE chairperson asked the psychologist and clinical director at Redcliff Ascent to evaluate the student at respondentís expense. In December 2001, the psychologist/clinical director administered the Wechsler Adult Intelligence Scale: Third Edition, which yielded a verbal IQ score of 107, a performance IQ score of 109, and a full scale IQ score of 108, which places the student within the average level of intellectual capacity as measured by that assessment. On the Woodcock-Johnson Tests of Achievement, the student achieved standard (and percentile) scores of 101 (53) for letter word identification, 113 (80) for passage comprehension, 71 (3) for calculation, 100 (50) for applied problems, 82 (11) for dictation, 91 (28) for writing samples, 98 (44) for science, 97 (43) for social studies, and 94 (35) for humanities. The psychologist/clinical director reported that the student "Öis at or above his expected age level or is working very closely to his expected age level with an exception in calculation where he is achieving at a rate of only better than 3 percent of his peers" (District Exhibit 39). The CSE received the report on January 3, 2002 (Transcript p. 42).
When the CSE convened on January 4, 2002, petitioners provided the committee with a December 14, 2001 psychiatric evaluation (District Exhibit 36) from their son's psychiatrist. The psychiatrist first treated the student in December 2000 for an ADHD and mild depressive quality. He noted that a significant dysphoria and an uncontrollable anger emerged during the course of treatment, and that psychotherapy and medication did not produce any significant change in the studentís emotional functioning (District Exhibit 36).
Based upon the psychological evaluation from Redcliff Ascent's psychologist/clinical director, the psychiatric evaluation from petitioners' son's psychiatrist, and the February 2001 report from the school psychologist, the CSE recommended a therapeutic residential placement and updated the studentís IEP goals and objectives at its January 4, 2002 meeting (District Exhibit 15). By letter dated January 10, 2002, the New York State Education Department (SED) approved the districtís application for reimbursement of the studentís residential placement (District Exhibit 21). By letter dated January 11, 2002, SED approved the student as eligible for an Emergency Interim Placement and provided the district with a list of six potential placements (District Exhibit 20). On approximately January 15, 2002, petitioners rejected the five schools that accepted the student (District Exhibit 17) and suggested that the district consider three additional schools including Peninsula Village, a therapeutic residential placement in Tennessee. On January 18, 2002, SED advised the district that Peninsula Village would be an approvable program, and a CSE meeting was scheduled for January 22, 2002 (Transcript pp. 583-584). Petitioners requested that the CSE meet on January 24 or 25, 2002; the meeting was rescheduled to January 25, 2002. Petitioner then left a message that a meeting on January 25 was no longer acceptable; the CSE meeting was again scheduled to January 29, 2002 (Transcript pp. 584-586).
At the January 29, 2002 CSE meeting, petitioners advised the CSE that they had removed their son from Redcliff Ascent on January 22, 2002 and placed him at the Provo Canyon School (Provo Canyon), a residential treatment center in Utah, on January 24, 2002. Provo Canyon was not an approved placement, and the CSE could not consider recommending it as the studentís placement. Instead, the CSE recommended placement at Peninsula Village in Tennessee (Transcript p. 66; District Exhibit 12). Peninsula Village is a program for students who have been diagnosed with conduct disorders, ADHD and learning problems as well as some students who have alcohol and substance abuse problems. A student who enters the program is evaluated educationally during the initial six weeks, and the program then works with the school district to develop an educational plan (Transcript p. 194). Although petitionersí educational consultant thought that Peninsula Village was an excellent program, she considered it too restrictive for petitionersí son (Transcript p. 207). By letter dated January 29, 2002, petitioners rejected the Peninsula Village placement and requested an impartial hearing (District Exhibit 1).
The hearing commenced on August 26, 2002, and continued on August 27, 2002, and February 13 and 25, 2003. At the partiesí request, the hearing was extended in increments until April 24, 2003 to permit receipt of the transcripts and submission of the partiesí briefs.
In a decision dated May 5, 2003, the impartial hearing officer (IHO) found that respondent met its burden of showing that its recommended placement for the student was appropriate. Therefore, he denied petitionersí reimbursement request. The IHO determined that petitioners delayed the districtís evaluation by refusing triennial testing, concealing information concerning the studentís deterioration, delaying notification of his placement at Redcliff Ascent and delaying the CSE meeting so they could place their son at Provo Canyon before the CSE had an opportunity to meet.
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. 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 School 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 (Application of a Child with 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 (Board of Educ. v. Rowley, 458 U.S. 176 ). The recommended program must also be provided in the least restrictive environment (34 C.F.R. ß 300.550[b]; 8 NYCRR 200.6[a]).
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, 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). An IEP must 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. ß 300.347[a]; 8 NYCRR 200.4[d][i]). 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).
State and federal law require that a childís IEP be reviewed and, if appropriate, revised periodically, but not less than annually (20 U.S.C. ß 1414[d][A][i]; 8 NYCRR 200.4[f]). What constitutes a suitable evaluation depends upon the nature of the childís disability and the nature of the change in the childís placement (Application of a Child with a Disability, Appeal No. 93-22). Although a functional behavioral assessment is required in the initial evaluation of a child whose behavior impedes his or her learning or that of others, both state and federal regulations also provide that any subsequent IEP review "shall. . .in the case of a student whose behavior impedes his or her learning or that of others, consider, when appropriate, strategies, including behavioral interventions, and supports to address that behavior" (8 NYCRR 200.4[d] [emphasis added], 8 NYCRR 2004.[f][i]; 34 C.F.R. ß 300.346[a][i], 34 C.F.R. ß 300.346[b]). Federal regulations specify that "a failure to, if appropriate, consider and address these behaviors in developing and implementing the childís IEP would constitute a denial of FAPE to the child" (Appendix A to Part 300 Notice of Interpretation, Section IV, Question 38).
Where behavior impedes a student from learning, and here all parties agreed it did, the CSE must properly assess that behavior as an initial step in developing an appropriate IEP (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 studentís behaviors occurred and the impact of the behavior on the childís academic progress (Application of a Child with a Disability, Appeal No. 00-081). The record reveals that the CSE issued its recommendation for the studentís program for the 2001-2002 school year at its July 17, 2001 meeting. The CSE relied on the results of psychological and education testing that had been administered in 1998 and considered the February 2001 social history and psychological report. The psychological report states that the student continued to demonstrate significant behavioral difficulties which impacted his academic performance. The CSE, however, failed to conduct a functional behavioral assessment, and the July 17, 2001 IEP states that a behavior intervention plan was not necessary (District Exhibit 54). Although the CSE changed the studentís classification from a learning disability to an emotional disability at its November 27, 2001 meeting, the IEP generated on that date states that the student has no social or emotional needs to be addressed through special education. The CSE erred in failing to ensure that a formal functional behavioral assessment of petitionersí child was performed and that his social and emotional needs were addressed. Therefore, upon the record before me, I find that respondent has not met its burden of proving that the program recommended by its CSE was reasonably calculated to confer educational benefits.
A student's parent bears the burden of proof with regard to the appropriateness of the services selected (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 Cent. 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. Department 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 least restrictive environment 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]).
Petitioners placed their son in a wilderness program at Redcliffe Ascent from October 25, 2001 through January 22, 2002. Petitionersí educational consultant chose Redcliff Ascent because the student was in crisis, and she believed that he needed to be in a safe environment with a significant degree of restrictiveness (Transcript p. 202). Field staff supervised the students in constructing shelter, hiking, maintaining hygiene, preparing food, and setting up camp (Transcript pp. 440-443). Once a week, the students were provided individual and group therapy (Transcript p. 423). Redcliff Ascentís clinical director indicated that the student made "a rather measured degree of progress within the structure of the program," but that "his "impulsiveness and inability to adaptively manage himself in the social milieu greatly impeded his ability to make the kinds of gains that most students make during their enrollment at Redcliff" (District Exhibit 18). However, the record indicates a lack of emotional growth while the student was at Redcliff Ascent. The clinical director recalled that during the studentís last few days at the program, the student was still lying, attempting to steal from other students and staff and instigating verbal arguments (Transcript p. 458). Regarding academics, his assessment indicated that the student possessed an average level of intellectual capacity but was achieving at a rate of only better than 3 percent of his peers in calculation, yet the only academic coursework offered to the student was a self-administered English course that dealt with discovering values (Transcript pp. 431-433). As such, I find that the Redcliff Ascent program did not meet the studentís special education needs.
Petitioners placed their son at Provo Canyon School from January 24, 2002 through July 19, 2002. Petitionersí educational advisor testified that the student had received the maximum out of the Redcliff Ascent program, and that he needed a more therapeutic model versus a positive peer culture model (Transcript pp. 204-205). Provo Canyon is a residential adolescent treatment center that provides therapy, a structured milieu and an academic program (Transcript pp. 357-358). The major treatment goals were to address the studentís conduct disorder, his substance abuse and his ADHD symptoms (IHO Exhibit 5). Although the discharge summary contains a statement that the reason for his discharge was that "the patient adequately completed program goals and objectives," the remainder of the summary and the testimony of his primary therapist at Provo Canyon contradict that conclusion. Elsewhere in the discharge summary it acknowledges that the student lacked the recovery skills to maintain long-term sobriety and that his greatest risk factor upon discharge was his desire to spend time with his old drug-using friends. Regarding the studentís discharge, his primary therapist testified that "(the parents) agreed with me that there is a point of diminishing returns with kids especially as they approach 18. A lot of times if you keep kids in treatment right until they turn 18, then it just makes things worse" (IHO Exhibit 5). The treatment plan recommended "the use of class removal and infraction" to manage the studentís ADHD (Parent Exhibit 2). Beyond this recommendation, the record contains no evidence that the school considered aids and supports other than redirection to address the studentís ADHD. The studentís academic progress reports from Provo Canyon indicate that the student was unengaged and that his academic program shifted without explanation (District Exhibit 7; Parent Exhibit 2). As such, I find that petitioners have also not met their burden of showing that the program at Provo Canyon met their sonís special education needs.
Since petitioners have not established that Redcliff Ascent or Provo Canyon provided an appropriate program for their son, I need not address whether equitable considerations support their claim for reimbursement.
THE APPEAL IS DISMISSED.
Albany, New York
December 5, 2003
JOSEPH P. FREY