The State Education Department
State Review Officer
Application of the BOARD OF EDUCATION OF THE SOUTH COLONIE CENTRAL SCHOOL DISTRICT for review of a determination of a hearing officer relating to the provision of educational services to a child suspected of having a disability
Tabner, Ryan and Keniry, Esqs., attorneys for petitioner, William F. Ryan, Jr., Esq., of counsel
Young, Sommers, Ward, Ritzenberg, Wooley, Baker & Moore, LLC, attorneys for respondent, Kenneth S. Ritzenberg, Esq., of counsel
Petitioner, the Board of Education of the South Colonie Central School District, appeals from the decision of an impartial hearing officer that directed petitioner's Committee on Special Education (CSE) to find respondent's son eligible for classification under the Individuals with Disabilities Education Act (IDEA) as emotionally disturbed (ED). The hearing officer found that petitioner should have conducted a manifestation determination in connection with the student's suspension on January 31, 2003, because school staff knew or should have known that the student might have a disability; and that the CSE erred in declining to classify respondent's son at its meetings of April 8, 2003 and May 7, 2003. Respondent cross-appeals from the hearing officer's denial of her request for compensatory education for the period her son was receiving home instruction during his suspension. The appeal must be dismissed. The cross-appeal must be dismissed.
Respondent's son was 17 years old and had completed the eleventh grade at petitioner's high school when the hearing ended on July 2, 2003. The hearing officer's decision sets forth a comprehensive account of the student's educational history. To summarize, the student did well in elementary school and received good grades (District Exhibit 1). He began to suffer from emotional difficulties when he was in sixth grade, related, in part, to significant family problems (Transcript pp. 1345, 1360; Parent Exhibit 1). While his grades were satisfactory at the end of eighth grade, his teachers commented that he was inconsistent and sometimes failed to complete assignments (District Exhibit 1). In addition, he was absent 18 times and tardy 12 times in eighth grade. In ninth grade, he received grades ranging from 66 in math to 90 in Spanish and was absent frequently (District Exhibit 1).
During the 2001-02 school year, when the student was in tenth grade, he reportedly had anxiety about riding the school bus and was late 45 times and absent 25 times (Transcript pp. 1347-49). He also had difficulty concentrating and completing assignments. He was failing chemistry and had dropped to a 67 in Spanish (District Exhibits 1, 4). He was disciplined 16 times that year, largely due to failure to complete assignments and for skipping detentions (Transcript pp. 478-79). The student met with the school social worker about increasing stress at home and at school and fatigue that he was experiencing (Transcript pp. 1207-08). After speaking with the student's mother, the associate principal offered to refrain from penalizing the student for absences or tardiness to avoid adding to his stress level (Transcript p. 582). He received an 85 in math, but had no mark in chemistry, and failed art and Computer Assisted Design (CAD) III/Manufacturing (District Exhibit 1).
At the beginning of the 2002-03 school year, when the student was in eleventh grade, his mother called the principal several times to inform him that her son was suffering from anxiety and depression and had trouble getting out of bed in the morning (Transcript pp. 487-88). The student's physician suggested that he see a Ph.D. psychologist, who was the clinical director of a stress and anxiety clinic, to address the student's fear, anxiety and sleep disturbance, and physical symptoms of stomach aches, headaches, palpitations and sweats (Transcript pp. 1352, 1358). The student was evaluated by the psychologist, and received a Diagnostic and Statistical Manual of Mental Disorders—Fourth Edition (DSM-IV) diagnosis of anxiety disorder not otherwise specified (NOS)) of moderate severity, with presenting complaints of pervasive anxiety, dread and excessive fatigue (District Exhibits 7, 8; Parent Exhibit 3).
In a letter to the student's pediatrician dated November 3, 2002, the psychologist wrote that the student "is avoidant regarding certain conditions, particularly in school. He has missed several days of school because of his anxiety states. He has difficulty concentrating and his grades have slipped a little bit. He also has impaired judgment consistent with his anxiety states" (Parent Exhibit 4). He recommended cognitive behavioral therapy and a trial of medication, which was later increased in dosage (Transcript p. 1359). The psychologist wrote on November 6, 2002 that for medical purposes the student should be withdrawn from his math class and placed in study hall (Parent Exhibit 3).
The principal sent a note to the student's teachers excusing his absences since he was under the care of two professionals for problems with anxiety and was taking antidepressant medication (District Exhibit 1). The parent contacted the student's guidance counselor regarding his anxiety level, and the guidance counselor spoke with his teachers (Transcript pp. 166-67, 247). The guidance counselor, the social worker and the associate principal all testified at the hearing that they saw no reason to make a referral to the CSE because the student's mother was handling the situation and he was already taking medication (Transcript pp. 168, 420, 1210-11).
On January 31, 2003, the student was involved in an incident at school during a fire drill. He admitted using a racial slur against some students, after allegedly being taunted. He was also found to have a racial slur carved into his left arm (Parent Exhibit 1; Transcript pp. 494-96). He was suspended for five days pending a superintendent's hearing (Transcript p. 497). After a disciplinary hearing on February 4, 2003, he was suspended for the rest of the school year and put on home instruction (Transcript p. 500). On February 7, 2003, his psychologist called the superintendent to share his clinical impression of the student's anxieties and how they had likely contributed to some of the problems; for example, his tendency to interpret threats where none existed (Transcript p. 744). On February 26, 2003, the mother's attorney wrote to the district requesting a referral to the CSE and an expedited evaluation (Parent Exhibit 23).
In response to the referral, the school psychologist conducted an evaluation and contacted his teachers for their input regarding the student's classroom performance (Parent Exhibit 7). One of his teachers reported to the school psychologist that the student had many absences, was withdrawn, could be a danger to others, drew a violent picture, seemed depressed and anxious, and stated that he hated himself (Parent Exhibit 7; Transcript p. 1010). His home instruction teacher stated that he had missed several tutoring sessions due to irregular sleep patterns and appeared pale (Parent Exhibit 7). When the school psychologist spoke with the student's psychologist, she learned that he had social phobia and secondary depressive features, with fatigue. The school psychologist noted that some of the student's responses to questions regarding his own emotional health deserved attention due to their critical nature (Parent Exhibit 7). She recommended against classification, but suggested that he receive social work counseling, anger management training, a separate location for exams, diversity training, study skill strategies, and support for the parents.
A CSE meeting was held on April 8, 2003. The CSE reviewed the report of the school psychologist (Transcript pp. 1297, 253-54). There was also an affidavit from his psychologist that explained that the student's anxiety caused him to interpret other people's behavior as threatening, and that his anxiety was related to the acts he committed (Transcript p. 1294; Parent Exhibit 6). He also stated that there was a positive family history of mental illness (Parent Exhibit 6). The CSE declined to classify the student under either the IDEA or Section 504 (Parent Exhibit 20). The parent and parent member were the only two members who disagreed with the decision not to classify (Transcript p. 1300).
The parent requested an expedited impartial hearing in a letter dated April 10, 2003, claiming that her son should have had a manifestation determination in connection with his suspension and requesting classification, appropriate services, compensatory education and attorneys fees (District Exhibit 1). After the first day of hearing on April 22, 2003, the hearing officer ruled that the pendency placement was the high school program, and found that the district should have been aware that the student might be suffering from an emotional disturbance and ordered the student back to school pending a review by the CSE (Transcript pp. 76-77). He ordered the CSE to gather more information from the student's psychologist and a psychiatrist and to reconvene for the purpose of determining whether he should be classified.
The student returned to school on May 1, 2003 (Transcript p. 1400). His mother testified that he began to miss several days of school per week, that his anxiety level was high, his sleep patterns were irregular, and he was unable to leave the house. On one occasion, he became extremely anxious and had to return home (Transcript pp. 1400-01). The CSE met on May 7, 2003 and once again determined that the student was not eligible for classification under the IDEA as emotionally disturbed (8 NYCRR 200.1 [zz], nor under Section 504 of the Rehabilitation Act (34 C.F.R. § 104.33[j]) with only the parent and parent member dissenting (Parent Exhibit 21; Transcript p. 1327).
The hearing recommenced and continued for seven more days between May 15 and July 2, 2003. At the May 30, 2003 hearing, his psychologist testified that the student's anxiety was now severe, and had been getting worse since the end of April (Transcript p. 939). He further testified that the student had developed physical symptoms in connection with his anxiety about school. Upon being shown the legal definition of a student with an emotional disturbance, he stated that in his opinion the student met the definition (Transcript p. 762). He also indicated that he had recently referred the student to a psychiatrist.
On August 27, 2003, the hearing officer rendered a final decision, ruling that the district should have conducted a manifestation determination in connection with the disciplinary action taken against the student on January 31, 2003; and that the recommendations of the CSE at its meetings of April 8 and May 7, 2003 should be set aside because the CSE did not have the necessary evaluative information in that it lacked an updated physical examination, a proper social history, classroom observation, and should have ordered a psychiatric evaluation. However, he declined to order compensatory education, because the student was on track to graduate in his senior year, making the issue moot.
The hearing officer directed the CSE to classify the student as emotionally disturbed under the IDEA, because his disability adversely affects his educational performance "to a marked degree," explaining that his grades and ability to participate in school are adversely affected by his absences and tardiness. He also ruled that the student should be classified under Section 504 as a person with a handicap, because his disability affected the major life activity of learning. He directed the CSE to conduct a full and comprehensive evaluation pursuant to 8 NYCRR 200.4 for the development of a special education program, and directed that his proposed IEP include program modifications and support services, and the recommendations of the school psychologist.
A board of education 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. 94-42; Application of a Child Suspected of Having a Disability, Appeal No. 94-41; Application of a Child Suspected of Having a Disability, Appeal No. 94-36; Application of a Child Suspected of Having a Disability, Appeal No. 94-18). Emotional disturbance is defined as 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]).
I find that the hearing officer's decision was well reasoned in all respects, and I adopt his findings of facts and conclusions of law. I find that by the end of the hearing, there was enough information to conclude that the student met the definition of a student with an emotional disturbance, as set forth above. Even at the April 8, 2003 CSE meeting, the CSE was aware of the student's DSM-IV diagnosis of anxiety, and his teachers had been alerted to the fact that they should not penalize him for excessive absences or tardiness, due to his anxiety. His grades, which had been in the 80's and 90's, had dropped in some of his classes to the 60's or failing. The associate principal testified that he was aware the student was taking medication, seeing a therapist, and had difficulty getting out of bed in the morning (Transcript pp. 488-89). The disciplinary incident demonstrated that he was having difficulty maintaining a positive relationship with his peers, and his therapist had discussed the nexus between the student's condition and his behavior with the superintendent.
If the CSE believed it did not have enough definitive information to conclude that the student was eligible to be classified as emotionally disturbed at the April 8, 2003 meeting, due to the lack of a psychiatric evaluation, and conflicting psychological reports as to whether the student's anxiety was severe enough to have warranted an ED classification, it should have ordered a psychiatric examination when it reconvened on May 7, 2003, pursuant to the hearing officer's directive in order to gather more information regarding the student's emotional status. By that time, the student's guidance counselor had been told by his Spanish teacher that the student was angry and depressed, drew a violent picture, and was a potential danger to himself. The school psychologist, who testified that the student was not eligible for classification, recommended that he participate in anger management classes.
In any event, the hearing officer correctly concluded, based on all of the evidence adduced at the hearing, that the student would be properly classified as emotionally disturbed. By the end of the hearing, the student had been referred by his psychologist to a psychiatrist, and the psychologist testified that his anxiety had increased in severity since April or May. I disagree with petitioner's assertion that the student was a "typical teenager who exhibits poor behavior but can function in school". To the contrary, it was his inability to function in school that became a source of his anxiety. Further, I cannot agree that the typical teenager requires antianxiety medication in order to function in school.
I must also disagree with petitioner's contention that "it is not the purpose of the IDEA to provide services to student who have bad behaviors" and I direct petitioner to the provisions of the IDEA that require that an individual evaluation must include "other appropriate assessments or evaluations" including a functional behavioral analysis for a student whose behavior impedes his learning "as necessary to ascertain the physical, mental, behavioral and emotional factors which contribute to the suspected disabilities" (8 NYCRR 200.4[b][v]). Whether or not the CSE recommendations should have been set aside, and whether or not all of the proper evaluations were done, it was clear by the end of the hearing that this student was in need of IDEA services, and I therefore see no reason to alter the hearing officer's decision that he should be so classified, or that a comprehensive evaluation be conducted for the purpose of providing an appropriate educational program.
For the same reasons cited above, I find that the CSE had reason to suspect that the incident for which the student was suspended might have been related to an emotional problem, and should have held a manifestation determination at the time of the suspension (8 NYCRR 201.5). School staff was already aware of his DSM-IV diagnosis of anxiety and the teachers had been alerted that they should not penalize him for excessive absences or tardiness, due to the anxiety. The associate principal was aware the student was taking medication, seeing a therapist, and had anxiety about coming to school (Transcript pp. 488-89). Moreover, the student's therapist called the superintendent shortly after the suspension to inform him of the nexus between the student's diagnosis and the alleged behavior. I find no reason to disturb the hearing officer's conclusion that a hearing would have been warranted.
The hearing officer also correctly concluded that the student is not entitled to compensatory education for the period he was suspended. He received home instruction during that time, studying English, history, Spanish, sociology, and health (Transcript p. 1031). This is not a case where the student was without any instruction for a significant period of time. The district herein provided alternative instruction to the student, as is required by law (Educ. Law § 3214). Further, the record indicates that the student is a senior for the 2003-04 school year and is on track to graduate with his class (District Exhibit 13; Parent Exhibit 28; Transcript pp. 1455-57).
Based 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. § 300.501[b]; Education Law § 4404). I therefore adopt the findings of fact and determination of the hearing officer.
THE APPEAL IS DISMISSED.
THE CROSS-APPEAL IS DISMISSED.
Albany, New York
October 27, 2003
PAUL F. KELLY