The State Education Department
State Review Officer

 

No. 04-037

 

 

 

 

Application of the BOARD OF EDUCATION OF THE SEWANHAKA CENTRAL HIGH 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

 

 

Appearances:
Douglas E. Libby, Esq., attorney for petitioner

 

The Children's Advisory Group, Inc., attorney for respondents, George Zelma, Esq., of counsel

 

 

DECISION

 

            Petitioner, the Board of Education of the Sewanhaka Central High School District, appeals from the decision of an impartial hearing officer which directed petitioner's Committee on Special Education (CSE) to find respondents' son eligible for classification pursuant to the Individuals with Disabilities Education Act (IDEA) as having an other health impairment (OHI).  The hearing officer also found that the student would be “best served” by an in-state residential placement.  Respondents, the parents of the student, cross-appeal from those parts of the hearing officer's decision which denied their requests that their son be classified as having an emotional disturbance (ED) and for prospective payment for tuition expenses at the Elan School (Elan) in Maine for the 2004-05 school year.  The appeal must be sustained in part and the cross-appeal must be dismissed.

 

            At the time of the hearing, the student was 15 years old and had been sent to Hope For Youth Diagnostic Center for a 30-day evaluation pursuant to a Family Court order (Tr. pp. 177-78, 359; see generally N.Y. Fam. Ct. Act §§ 345.1, 351.1).    Respondents' son has medical diagnoses of bipolar disorder not otherwise specified (NOS) (Dist. Ex. C48, Parent Ex. E3), attention deficit hyperactivity disorder (ADHD) (Dist. Ex. C50, Parent Ex. H), oppositional defiant disorder (ODD) (Dist. Ex. C32) and conduct disorder (Dist. Ex. C32).  The student has also been diagnosed by an independent neuropsychologist as having  ADHD,  ODD, and a mood disorder NOS (Dist. Ex. C8, Parent Ex. M5; Tr. p. 261).  Petitioner's school psychologist also testified that the student was diagnosed as having ODD and a mood disorder (Tr. pp. 43-44).  Petitioner's CSE had met on two occasions to consider whether respondents' son was eligible for IDEA classification.  On both occasions petitioner's CSE declined to classify the student.  The student's eligibility for classification is the subject of this appeal.

 

            At the hearing, the student's mother testified that the student had always exhibited behavioral problems at home, including cursing, throwing tantrums and a general difficulty with regulating his emotions (Tr. p. 331; Dist. Ex. C4).  The student was academically successful in elementary school, but his teachers often reported his impulsivity, calling out, and talkative behaviors to the parents (Tr. pp. 255, 332).  The student's mother also testified that his teachers alerted her to her son's difficulty with sustaining attention and sitting still in class (Tr. p. 332; Dist. Ex. C5).

 

The student began experiencing increased difficulty in school beginning in seventh grade.  Inattention continued to be a problem and behavioral issues began to surface (Tr. p. 333; Dist. Ex. C5).  The student failed his seventh grade science class.  Teacher comments noted that he was too talkative, failed to turn in homework and had inappropriate behaviors (Dist. Ex. C16).  In eighth grade, the student's behavior problems escalated.  His teachers reported that the student was rude and disrespectful toward them (Dist. Ex. C16).  Although he passed all of his eighth grade classes, he failed three of his five ninth grade classes, including Spanish, math and earth science.  The student's escalating behavior in ninth grade resulted in disciplinary intervention.  He was suspended several times during ninth grade for various reasons including failure to comply with school rules, leaving school grounds and disorderly conduct (Dist. Exs. C5, C16, Parent Exs. N1-N6).

 

On September 25, 2003, the student was referred to petitioner's Child Study Team (CST) due to ongoing concerns relative to the student's behavior in school (Tr. p. 13).  The CST did not refer the student to petitioner's CSE nor its Section 504 Committee, rather they recommended that the mother seek private, outpatient psychotherapy for her son and suggested outside providers (Tr. pp. 13-14).  The CST also recommended a consult with the district psychiatrist (Tr. p. 14).

 

The district psychiatrist evaluated the student on October 10, 2003.  Concerns for his safety and well being due to behavioral difficulties at school and at home caused her to recommend immediate hospitalization at Holliswood Hospital for therapy and further evaluation (Dist. Exs. C5, C32).  Results of the district psychiatric interview indicated that the student admitted to not caring at all about school or home and presented in a fairly depressed manner.  The psychiatrist described the student as highly defiant and oppositional.  During the interview, the student admitted to losing his temper quickly and to occasional use of alcohol and marijuana.  The student denied any other substance abuse (Dist. Exs. C31-C32).

 

The student was discharged from Holliswood Hospital after four days.  According to his records and discharge information, the student was diagnosed as having bipolar disorder NOS and ADHD (Dist. Exs. C46-C49, Parent Exs. E1-E4).  A staff psychiatrist prescribed medication for the treatment of bipolar disorder (Dist Ex. C5, Parent Ex. E3).  The student continued treatment with the staff psychiatrist who also prescribed medication for the treatment of ADHD in February 2004 (Dist. Ex. C5, Parent Ex. M2).  The student continued outpatient therapy on a weekly basis with the staff social worker for a total of 20 sessions (Tr. p. 310; see also Dist. Exs. DP14, C50, Parent Ex. H).

 

In October 2003, the parent referred her son to petitioner's CSE (Dist. Ex. DP56).  On October 22, 2003, the district's psychologist administered the Weschler Intelligence Scale for Children – Fourth Edition (Dist. Exs. C16-C22).  The evaluator reported that the student’s scores were within average range for both verbal and nonverbal intellectual functioning (Dist. Exs. C18-C19).  His working memory and processing speed were also normal (Dist. Ex. C19).  Respondents were asked to complete the parent portion of the Conners Parent and Teacher Rating Scale – Revised (id.).  The teacher portion was given to three of the student’s then current teachers (id.).  Both parents rated the Oppositional Scale as markedly atypical (id.).  The evaluator reported that both parents saw their son as having significant problems with abiding rules and authority figures (id.).  On the Cognitive/Inattention Scale, both parents again rated their son as markedly atypical suggesting significant problems with organization, completing tasks and with concentration (Dist. Exs. C19-C20).  Both parents rated the ADHD Index as markedly atypical (Dist. Ex. C20).

 

The student's teachers rated him as moderately to markedly atypical on the Oppositional Scale, slightly to mildly atypical on the Cognitive/Inattention Scale, and slightly to markedly on the Hyperactivity Scale (Dist. Ex. C20).  The ADHD Scale fell into the markedly atypical range for all teachers (id.).  The psychologist reported that the student exhibited marked disinclination to restrain his impulses and expressed a careless disregard to the consequences of his behavior (Dist. Ex. C21).  The evaluator opined that the student was unable to delay gratification and often acted impulsively with insufficient deliberation and poor judgment (id.).  The district psychologist recommended an educational evaluation (Dist. Ex. C22).

 

Petitioner's Section 504 Committee convened on October 30, 2003 to consider educational accommodations for the student (Dist. Exs. DP42, DP44).  The resulting 504 Individualized Accommodation Plan included special alerts that the student had ADHD and bipolar disorder diagnoses (Dist. Exs. DP44-DP45, AE19-AE20, Parent Exs. D1, D3-D4).  No testing accommodations were recommended.  Program modifications consisted of condensing the student’s schedule from six and one-half credits to six credits (Dist. Exs. DP44-DP45, Parent Exs. D3-D4).  The result being that the student would no longer be required to attend the class from which he frequently left without permission (Tr. pp. 348-49).  Respondents did not accept the recommendations of the Section 504 Committee (Dist. Exs. DP36, DP40-DP41, DP43, Parent Exs. F3-F4).  The student's mother testified that a condensed schedule did not meet her son’s needs and would only give him more time walking the streets (Tr. p. 365).  On November 5, 2003, the student's mother referred her son to petitioner's CSE a second time (Dist. Exs. DP36-DP37, DP40-DP41, Parent Exs. F3-F4).  Also on November 5, 2003, the district's superintendent suspended the student for insubordination, disorderly and disruptive conduct (Dist. Exs. DP32-DP33, Parent Exs. G1-G2). 

 

A social history was completed on November 10, 2003 (Dist. Exs. C40-C42, Parent Exs. U1-U3).  The student's mother reported that her son was a "different person" in the summer and was much more compliant with household rules during this time (Tr. p. 341).  His mother also testified that during the summer her son does not exhibit tantrums, stating, "[h]e always had a smile on his face.  He was always a happy child" (Tr. p. 341).  On November 14, 2003, an educational evaluation was completed (Dist. Exs. C23-C29, Parent Exs. J1-J7).  The Weschler Individual Achievement Test – Second Edition (WIAT – II) was administered to respondents' son (id.).  The only reported academic weakness was found to be in the area of written expression (Dist. Exs. C25, C27, Parent Exs. J3, J5).  The student's score placed him in the third percentile (id.).

 

The CSE convened on December 11, 2003 to review the student's social history, educational, psychiatric, psycho-educational evaluations and the student's health records (Dist. Exs. DP22-DP24, AE5-AE7, AE12-AE14).  The CSE did not have a classroom observation report because the district did not conduct an observation. .  The CSE found the student ineligible for IDEA services (Dist. Exs. AE5-AE7, AE12-AE14).  On December 12, 2003, the parent requested an independent educational evaluation at district expense (Dist. Ex. D21). 

 

On January 12, 2004, petitioner's attendance officer made a school referral to the Nassau County Probation Department on the ground of truancy (Dist. Ex. AE 25).  The school referral form indicated that the student had been referred to a day treatment program for substance abuse.  Petitioner's attendance officer reported that the student's mother had visited the program and believed it would not be an appropriate placement for her son (Dist. Ex. AE 26).

 

By letter dated February 6, 2004, petitioner's superintendent informed respondents that their son was suspended for "insubordinate, disorderly and disruptive conduct" (Dist. Ex. O7).  The student was immediately placed on homebound instruction and a superintendent's suspension hearing was scheduled for February 24, 2004 (Dist. Exs. O7, AE21-AE22; Parent Ex. L).

 

On February 18, March 1, and March 4, 2004, respondents' independent neuropsychologist evaluated their son.  The evaluator reported his diagnostic impressions to respondents by letter dated February 20, 2004 (Dist. Exs. DP12-DP13).  The neuropsychologist had concerns about the student’s motivation to perform.  He stated that the scores might have underestimated the student’s true academic ability.  Additionally, he opined that the student’s disengagement from learning over the past several years might have prevented him from progressing in academic skills.  The neuropsychologist also indicated that the student presented as an individual with a long history of ADHD and ODD.  The student was described as quick to anger, reacting strongly to his emotions, verbally abusive and as having general difficulty regulating his emotional responses.  He reportedly exhibited chronic irritability, apparent unhappiness and emotional reactivity (Dist. Exs. DP12-DP13).

 

On February 24, 2004, the superintendent's suspension hearing was held.  According to the hearing transcript, petitioner's attorney stated that the Section 504 Committee had met earlier the same day and "found the behavior that is the subject of these charges to be related to the 504 disability" (Dist. Ex. O8 at p. 2).  At the suspension hearing, the parties agreed that the student would not benefit from returning to petitioner's Floral Park Memorial High School (Dist. Ex. O8 at pp. 8-9).  Petitioner's attorney reported that he had been authorized by the superintendent to offer placement at the Nassau County Board of Cooperative Educational Services (BOCES) Pace Program as an alternative educational setting for the remainder of the 2003-04 school year (Dist. Ex. O8 at p. 9).  By letter dated March 9, 2004, petitioner's attorney reiterated to respondents' attorney that the district's superintendent had authorized screening of the student by the BOCES Pace Program (Dist. Ex. DP15).  Petitioner's attorney also advised respondents' attorney that based upon the representations of the student's mother that she would arrange for screening at the BOCES Pace Program, the district's attendance officer had "advised the Family Court to hold any further consideration of the PINS Petition in abeyance" (Dist. Ex. DP15).

 

The independent neuropsychologist's evaluation was reportedly received by respondents on March 16, 2004 (Dist. Ex. C3).  The evaluator reported that the student has a history of and currently experiences symptoms associated with attentional difficulties, disorganization, hyperactivity and impulsivity (Dist. Ex. C6).  The neuropsychologist found that the student had extreme difficulty taking responsibility for his actions (Dist. Ex. C6).  The evaluator further reported that the student was an extremely passive learner who did not actively utilize strategies to learn more effectively (Dist. Ex. C8).  The student's reading and math scores reflected grade level, while his handwriting was reported to be immature and his writing speed slow (Dist. Ex. C7; see also Dist. Ex. C23).  The neuropsychologist stated that the student did not present with a specific learning disability.  The student did present, however, with difficulties in planning and organization when the task is unstructured (Dist. Ex. C7).  In regard to the student, the neuropsychologist stated “while ADHD and ODD symptomology were present from a young age, they did not cause him to fail in the earlier grades.  At this time, however, the demands required of him at school have exceeded his ability to compensate for his difficulties with attention, impulsivity and organization” (Dist. Ex. C8).  The neuropsychologist also testified that the student’s drug and alcohol use was not a primary problem that required a specific intervention (Tr. p. 281).

 

Through their attorney, respondents requested a CSE meeting by letter dated March 25, 2004, to consider "the total breakdown in [the student's] current interim placement and to consider the evaluation recently completed ... [the student'] can no longer receive the benefits of instruction from a tutor under the current program.  He is floundering, and losing the educational benefits for this whole academic year" (Parent Ex. R; see also Tr. p. 357).  The student's mother testified that her son complied with home instruction for the first two weeks and then refused to participate (Tr. p. 354).  The record reveals that the student was arrested on March 30, 2004.  The reasons for the arrest are unclear (Tr. p. 355-57)

 

The CSE again convened on April 19, 2004 to review the independent neuropsychological evaluation for consideration of eligibility for services pursuant to IDEA (Dist. Ex. AE8).  The neuropsychologist participated in this meeting by telephone and reported that the student's behavior problems had escalated (Dist. Ex. AE10).  The CSE Chairperson questioned why the BOCES Pace Program had been rejected by the student's parents.  The student's mother felt the PACE Program was not appropriate because it was not therapeutic (Dist. Ex. AE 10).  The student's mother also testified that the BOCES Pace Program appeared to be for students who drop out of school and would not address her son's ADHD and emotional issues (Tr. p. 350).  The parent requested residential placement at Elan. Elan has not been approved by the New York State Education Department as a school with which school districts may contract to instruct students with disabilities.  The CSE again found that the student was ineligible for IDEA services.  The meeting minutes reflect the committee had concerns relative to the lack of drug testing since December 2003, and that respondents had not followed up on previous recommendations of exploring drug treatment facilities (Dist. Ex. AE10-AE11).  Respondents disagreed with the recommendation of the CSE.

 

By letter dated April 19, 2004 (Parent Exs. A1-A2), respondents requested an impartial hearing alleging that their son was denied a free appropriate public education (FAPE) for the 2003-04 school year, and seeking classification of their son as ED, residential placement and "prospective tuition payment for the 2003-04 school year and the [20]04-05 school year" (Parent Ex. A2). 

 

The impartial hearing in this matter began May 11, 2004 and concluded on May 12, 2004.  The impartial hearing officer rendered his decision on May 17, 2004.  The hearing officer had agreed to render his decision prior to the student's appearance in Family Court on May 18, 2004 (see N.Y. Fam. Ct. Act art. 3, Part 5).   

 

A review of the hearing record and resulting decision reveals that the impartial hearing officer considered three possible classifications for the student.  After a well-reasoned discussion of each, he ordered that the student be classified as OHI (8 NYCRR 200.1(zz)(10)), and rejected the classifications of ED (8 NYCRR 200.1(zz)(4)) and learning disability (LD) (8 NYCRR 200.1(zz)(6))  (IHO Decision, pp. 11-14).  After finding that the student should be classified, the hearing officer then stated "...[i]t is well understood that a District must provide any child with a disability with a basic floor of opportunity so that there can be educational benefit.  To properly decide what this is, in this case I first must consider the concept and requirement of Least Restrictive Environment" (IHO Decision, p. 14) (internal quotation and citation omitted).  The hearing officer then found residential placement to be appropriate and ordered petitioner's CSE to "look for a state based placement" near the student's family and to only consider Elan if one was not available (IHO Decision, p. 15).   The hearing officer did not address the issue of prospective tuition reimbursement.

 

In this appeal, petitioner requests that the impartial hearing officer's decision be annulled on the grounds that:  1) the hearing officer failed to review the hearing transcript before rendering his decision; 2) the classification of OHI was not properly before the hearing officer; 3) the hearing officer erred in finding the student eligible for classification as OHI; 4) the hearing officer erred in finding the student eligible for any classification; and 5) the hearing officer erred in ordering residential placement.  In the alternative, petitioner requests that if "the State Review Officer finds that the Hearing Officer properly classified [the student] as Other Health Impaired, ...that the matter be remanded to the Committee on Special Education to afford [it] an opportunity to develop an appropriate placement recommendation based upon the most recent evaluative information from the Family Court (Am. Pet. ¶ 19[f]).

 

In their cross-appeal, respondents request that the State Review Officer order petitioner's CSE to classify their son as ED (8 NYCRR § 200.1[zz][4]) in addition to affirming the OHI classification, and request prospective tuition reimbursement for the 2004-05 school year.  Respondents assert that their son was unilaterally placed at Elan on July 6, 2004, approximately 50 days after the hearing officer rendered his decision and 68 days after their hearing request (Ans. ¶ 19).  Respondents further assert that "[o]n July 1, 2004, Family Court … approved [the student's] placement at Elan and emphasized for the record that the parents would pay the tuition only until the School District takes over it's [sic] obligation to pay" (Ans. ¶ 17; see N.Y. Fam. Ct. Act §§ 352.1, 352.2, 353.3).  I note that neither party has provided a copy of the Family Court order in its pleadings.

 

I will first address the issues of eligibility and residential placement.  The IDEA requires states to identify, locate and evaluate all children with disabilities residing in the state (20 U.S.C. § 1412 [a][3]; 34 C.F.R. § 300.125 [a][1][i]).  The "child-find" provision applies to "children who are suspected of being a child with a disability … and in need of special education, even though they are advancing from grade to grade" (34 C.F.R. § 300.125 [a][2][ii]).  "[T]he child-find duty 'is triggered when the [state or LEA] has reason to suspect a disability, and reason to suspect that special education services may be needed to address that disability'" (Dep't. of Educ. v. Cari Rae S., 158 F. Supp. 2d 1190, 1194 [D. Hawaii 2001] quoting Corpus Christi Indep. Sch. Dist., 31 IDELR ¶ 41, at 158, No. 105-SE-1298 [Jan. 19, 1999]).

 

The record reveals that this student was academically successful in school through seventh grade (Dist. Ex. C4; Tr. p. 331).  The student failed his seventh grade science class.  Although he passed all of his eighth grade classes, his behavior problems escalated and in ninth grade he was not academically successful and his attendance seriously declined (Dist. Exs. C4, C5, C16).  During the period of decline in attendance, escalation of behavioral and disciplinary problems, petitioner's CST failed to refer the student to its CSE or Section 504 Committee (Tr. p. 14).  In October 2003, the student's mother referred her son to the CSE.  On October 30, 2003, petitioner's Section 504 Committee, rather than the CSE, met and offered an accommodation plan for the student.  Respondents did not consent to the plan and on November 5, 2003, again referred their son to the CSE.  Meanwhile, the student's behavior and attendance continued to decline. 

 

Although a student's failure to perform academically because of absence from school does not per se afford a basis to suspect that the student has a disability (Application of a Child Suspected of Having a Disability, Appeal No. 01-082), in this case the student's academic decline and behavior problems coincided with the increase in academic demands as one progresses from grade to grade.  Given the student’s academic history, including the recent decline in performance, the increase in inappropriate behavior and missed classes, and respondents' request for assistance, I find petitioner had sufficient reason to suspect that special education services might have been needed and its failure to timely identify and evaluate the student during the fall 2003 violated its child-find obligations.

 

In response to respondents' second referral, the CSE met on December 11, 2003 and determined that the student was not eligible for special education.   On December 12, 2003, respondents requested an independent educational evaluation (IEE).  Petitioner agreed to pay for the IEE.  On January 12, 2004, the student was referred by petitioner to the Nassau County Probation Department for truancy.  During February through March 2004, respondents continued to have their son evaluated while petitioner pursued Family Court intervention and continued disciplinary action against the student.  On March 25, 2004, respondents requested a third CSE meeting to review the IEE and consider the student's eligibility for services.  The CSE met April 19, 2004 and again determined the student not to be eligible for special education.  At this meeting respondents presented a second independent diagnosis of ADHD, nevertheless, the CSE disagreed with the diagnosis. The CSE agreed with the district's psychiatrist that in order to be properly diagnosed with ADHD, a person must exhibit symptoms before the age of 7 in more than one setting, and also that the student's self-report of occasional use of marijuana and alcohol prevented him from being classified.   

 

The purpose of the IDEA is to ensure that children with disabilities are provided a FAPE (20 U.S.C. § 1400[d][1][A]; see Mrs. W. v. Tirozzi, 832 F.2d 748, 750 [2d Cir. 1987]).  A FAPE consists of specialized education and related services embodied in an IEP (34 C.F.R. § 300.13).  To meet its burden of showing that it provided a FAPE to an individual child, a board of education must show (a) that it complied with the procedural requirements set forth in the IDEA, and (b) that the IEP developed through the IDEA's procedures is reasonably calculated to enable the child to receive educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]).  If a procedural violation has occurred, relief is warranted only if the violation affected the student's right to a FAPE (J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]).  The student's right to a FAPE has been affected when the procedural violation results in the loss of the student's educational opportunity or seriously infringes upon the parents' opportunity to participate in the development of the student's IEP (see Evans v. Bd. of Educ., 930 F. Supp. 83, 93-94 [S.D.N.Y. 1996]; W.A. v. Pascarella, 153 F. Supp.2d 144, 153 [D. Conn. 2001]; Briere v. Fair Haven Grade Sch. Dist., 948 F. Supp. 1242, 1255 [D. Vt. 1996]; Application of a Child with a Disability, Appeal No. 02-092). 

 

The student's recommended program must also be provided in the LRE (34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).  An appropriate 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 (20 U.S.C. § 1414[d]; Application of a Child with a Disability, Appeal No. 02-092; Application of a Child with a Disability, Appeal No. 01-105).

 

In this case, the CSE refused to classify respondents' son based upon the opinion of petitioner's psychiatrist that the student could not be diagnosed as having ADHD because the data she reviewed did not demonstrate that the student had manifested symptoms in more than one setting before the age of 7 (Dist. Ex. AE7; Tr. pp. 32-33, 193, 201, 219).  The ADHD diagnostic criteria guidelines are set forth in the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition Text Revision (DSM-IV-TR).    In addition to containing diagnostic criteria, the DSM-IV-TR also contains a cautionary statement:  "[t]he specified diagnostic criteria for each mental disorder are offered as guidelines for making diagnoses ... inclusion here ... does not imply that the condition meets legal or other nonmedical criteria" (American Psychiatric Association:  Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revision. Washington, DC, American Psychiatric Association, 2000 at p. xxxvii).   Without a diagnosis of ADHD, the CSE concluded that the student could not be classified as OHI and receive special education services because he did not meet the regulatory definition of OHI. I am not persuaded that the CSE reached the correct conclusion. I find that the psychiatric opinion relied upon by the CSE is controverted by the opinions of other mental health professionals, which are more consistent with a reading of the entire record

 

The record indicates that petitioner’s psychiatrist did not have available and did not review the student's school records before third grade.  The record also indicates that the student began attending school in petitioner's district beginning in third grade.  Moreover, the student's mother advised the neuropsychologist that since third grade the student's teachers had reported that her son would often call out in class, talk too much and could not sustain attention and that he had always exhibited impulsive behaviors at home (Dist. Ex. C4-C5). 

 

The record reveals that the student has two independent diagnoses of ADHD and that petitioner has documented in its own records that the student has a disability and that he had been diagnosed as having ADHD and bipolar disorder (Dist. Exs. DP44-45, AE10, AE19-AE20, Parent Exs. D3-D4).  A diagnosis of ADHD does not automatically qualify a student for classification.  A student who has ADHD may be classified as OHI when the disorder adversely affects the student's educational performance (8 NYCRR 200.1[zz][10]; Application of a Child with a Disability, Appeal No. 02-040; Application of a Child with a Disability, Appeal No. 99-86).   

 

In addition, the CSE concluded that the student’s drug and alcohol usage precluded classification (Tr. pp. 112, 136).  Petitioner's contention that the student could not be classified due to drug and alcohol use is wholly unsupported by the record.  There is no evidence in the record that indicates the student was using drugs or alcohol while he was evaluated.  Further there is nothing in the record to indicate that the student was using drugs or alcohol during school hours. Petitioner's school psychologist testified that the ADHD diagnosis was unreliable because of the drug and alcohol issue (Tr. pp. 47, 74).  The school psychologist further testified that he had decided prior to the CSE meeting that the student’s problem with drugs and alcohol had to be dealt with before the CSE considered classifying the student (Tr. pp. 38, 112).  Both the school psychologist and the director of special education testified that they would have recommended classification but for the alleged drug and alcohol use (Tr. pp. 112, 136).

 

The level and intensity of the student's purported drug and alcohol use is not well documented.  The only indication of drug use came from the student's self-reports.  The student stated to the school psychiatrist that he used marijuana and alcohol occasionally, mostly on weekends (Dist. Exs. C31-C32) and he also reported to the neuropsychologist that he smoked marijuana and drank a couple of times every couple of weeks (Tr. p. 265).  The student further revealed to petitioner's school psychologist that he consumed alcohol several times in the past but does not do so regularly (Dist. Ex. C6).  The student's mother reported to the neuropsychologist that she did not believe her son's drug and alcohol use was a significant factor (Tr. p. 265).  The neuropsychologist testified that neither drug nor alcohol use has caused the student’s increasing problems stating "I would have expected to have also seen in his record suspicions that he was either high or drunk, and I'm not so confident that if these behaviors were happening regularly and on an increasing basis that other indications of substance or alcohol abuse would have gone unnoticed" (Tr. p. 267). 

 

Based upon the foregoing, I agree with the impartial hearing officer that the student should be classified as OHI.  New York State regulation defines OHI as:

 

Other health-impairment means having limited strength, vitality or alertness, including a heightened alertness to environmental stimuli, that results in limited alertness with respect to the educational environment, that is due to chronic or acute health problems, including but not limited to a heart condition, tuberculosis, rheumatic fever, nephritis, asthma, sickle cell anemia, hemophilia, epilepsy, lead poisoning, leukemia, diabetes, attention deficit disorder or attention deficit hyperactivity disorder or tourette syndrome, which adversely affects a student's educational performance.

 

(8 NYCRR 200.1[zz][10]) (emphasis added)

 

 

This classification is appropriate given the student's symptoms of ADHD.  The student's impulsivity and inability to delay gratification have adversely affected the student's educational performance and have directly interfered with his ability to benefit from instruction (Tr. 82, 85).  The record reveals that the student attends school in the morning and then frequently leaves school grounds because he feels "he can" (Tr. 353).  The record further reveals that the student's frequent absences involve far more than simple truancy.  I also agree with the hearing officer that the student does not meet the eligibility requirements for the classifications of LD or ED and I hereby adopt his finding relative to those classifications. 

 

By failing to meet its child find obligations and failing to classify respondent's son, I find that petitioner has violated the requirements of IDEA.  I further find that these violations have resulted in a loss of educational opportunity for the student and petitioner has failed to offer the student a FAPE (see Evans, 930 F. Supp. at 93-94; W.A. v. Pascarella, 153 F. Supp.2d at 153; Briere, 948 F. Supp. at 1255; Application of a Child with a Disability, Appeal No. 02-092). 

 

The impartial hearing officer in this matter, once finding petitioner should have classified respondents' son, then next addressed the least restrictive environment requirement.  I find the hearing officer erred in doing so based on the evidence before him.  Once the hearing officer had determined the appropriate classification, the next step for offering a FAPE should have been the development of an appropriate IEP, followed by a determination of an appropriate placement in the LRE (34 C.F.R. Part 300, Appendix A, Notice of Interpretation, Question 14). Here, the impartial hearing officer determined that the student was eligible to receive special education, did not address what special services and programs would meet the student’s needs, and improperly decided placement. Placement should not be determined prior to the determination of needed special education services (id.).  Furthermore, the impartial hearing officer's order for residential placement is unsupported by this record.  The record reveals that the parent only sought residential placement for her son, after he was arrested.  Since the CSE failed to classify him in the first instance, there has been no CSE discussion of any programs or placements along the continuum of services (8 NYCRR 200.6), nor does the hearing record demonstrate a basis for making such determinations. 

 

Although the record before me does not demonstrate that this student needs a residential placement for educational purposes, the record reflects that he has been placed in a residential facility.  In the time since petitioner appealed the impartial hearing officer's decision, a dispositional hearing (N.Y. Fam. Ct. Act § 350.3, 352.1) was scheduled for Family Court on June 25, 2004 (Am. Pet. ¶ 18) and placement at Elan was purportedly "approved" by the Court on July 1, 2004 (Ans. ¶ 17).  It is not clear whether the placement was pursuant to an Order of disposition by the Family Court (N.Y. Fam. Ct. Act § 352.2).  Respondents herein have asserted that their son was "unilaterally placed" at Elan on July 6, 2004 (Ans. ¶ 19) and conversely at the hearing that he was not unilaterally placed at Elan (Tr p 314).  Since neither party has submitted a copy of the Order of disposition, whether or not the student was "placed" at Elan within the meaning of the Family Court Act is unknown (N.Y. Fam. Ct. Act § 353.3).

 

I am granting petitioner's "in the alternative" request for relief:  that the matter be remanded to the CSE to classify the student and develop an "appropriate placement for recommendation.  Petitioner has requested that the matter be remanded to the CSE, in part, for the purposes of reviewing the most recent evaluations obtained by the Nassau County Family Court.  While the CSE should review and consider any relevant new evaluations, the CSE is responsible for developing an appropriate educational program and assuring that proper evaluations are performed to develop an IEP that is consistent with the requirements of the IDEA.  I note that several New York Family Courts have commented on the number of cases based upon truancy petitions filed by school districts wherein disabling conditions have been identified for the first time only through court involvement after school districts failed to properly identify or provide services to students in need of special education (see Matter of Shelly M., 115 Misc.2d 19, 22 [N.Y. Fam. Ct. Monroe County 1982][holding courts should become involved only if the disabled student fails to attend an appropriate educational placement]; see also Matter of Doe, 194 Misc.2d 93, 99 [N.Y. Fam. Ct. Delaware County 2002] [holding school district must first attempt to fashion a reasonable and appropriate environment for the student from its many resources before commencing judicial proceedings]; Matter of McCann, 1990 WL 16883 [Tenn. Ct. App. 1990] [holding school discipline problems must be addressed within the administrative framework of the school system before the school district may resort to court intervention]; Matter of Ruffel P., 153 Misc.2d 702, 707 [N.Y. Fam. Ct. Orange County 1992] [holding school district must first attempt to fashion a reasonable and appropriate environment for the student from its many resources before commencing judicial proceedings]).  In the instant case, respondents' son did not fail to attend an appropriate educational placement, rather petitioner failed to offer one.  

 

I now turn to respondents' cross-appeal.  During the hearing, respondents' attorney stated, "I would just like to say for the record that the request for the Elan School was merely because they have written a letter of acceptance to [the parent].  We feel that it would be an appropriate school... Really what the family is asking for is a residential placement.  It's not really restricted to this one school.  There has been no unilateral placement made.  I don't want to overemphasize the particular aspects of the school" (Tr. p. 314).  As indicated above, the hearing officer did not address the issue of prospective tuition reimbursement in his decision and treated the relief sought as a request for the CSE to recommend residential placement.  In their answer and cross-appeal, respondents request an award of prospective tuition relief for placement at Elan for the 2004-05 school year (Ans. p. 17). 

 

At the time of the hearing respondents had not unilaterally enrolled their son at Elan.  Respondents also did not contend that they had incurred any costs related to the education of their son at a private school.  Their request for tuition costs prior to the enrollment of their son in an unapproved private school for the 2004-05 school year and prior to payment of tuition for that year is denied on two grounds. First, based upon respondents' attorney's statement on the record, I find respondents' claims for tuition reimbursement for the 2003-04 school year and for prospective payment of tuition for the 2004-05 school year were abandoned at the time of the hearing. The request for prospective tuition for the 2004-05 school year is being raised in this appeal for the first time and is not properly before me (Application of a Child with a Disability, Appeal No. 98-55; Application of the Bd. of Educ., Appeal No. 00-091&01-018).  Second, it is well settled that parents who reject a school district's IEP and choose to unilaterally place their child at a private school without consent or referral by the local educational agency do so at their own financial risk (Burlington v. Dep't. of Educ., 471 U.S. 359, 373-74 [1985]).  It is also settled that monetary damages are not available under the IDEA (Taylor v. Vt. Dep't. of Educ., 313 F.3d 768, 786 n.14 [2d Cir. 2002]; Polera v. Bd. of Educ., 288 F.3d 478, 486 [2d Cir. 2002]).  Nevertheless, inherent in the courts' power under the IDEA to "grant such relief as the court determines is appropriate" (20 U.S.C. § 1415[i][2][B][iii]; Burlington, 471 U.S. at 374), the IDEA does allow that "a court or a hearing officer may require the agency to reimburse the parents for the cost of that enrollment if the court or hearing officer finds that the agency had not made a [FAPE] available to the child in a timely manner prior to that enrollment" and the private placement is appropriate (20 U.S.C. 1412[a][10][C][ii][emphasis added]; 34 C.F.R. § 300.403[c]; see generally Burlington, 471 U.S. 359).  This provision embodies two underlying concepts.  First, it allows the time for the district to create an appropriate placement and program to include up until a reasonable time period prior to the child's enrollment in a private school.  This is consistent with the underlying IDEA procedural mechanisms "which encourage parents to seek relief at the time that a deficiency occurs and that allows the educational system to bring its expertise to bear in correcting its own mistakes" (Polera v. Bd. of Educ., 288 F.3d 478, 486 [2d Cir. 2002]).  Second, the statute specifies that reimbursement after the child is enrolled in a private school may be an available remedy if the conditions identified in Burlington are met.  In this context, reimbursement is distinguished from monetary damages by the Supreme Court in that reimbursement "merely requires the [district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance had it developed a proper IEP" (Burlington, 471 U.S. at 370-71; see Muller v. Comm. on Special Educ., 145 F.3d 95, 105 [2d Cir. 1998]; Northeast Cent. Sch. Dist. v. Sobol, 79 N.Y. 598, 607 [1992]; Wenger v. Canastota, 979 F.Supp. 147, 152 [N.D.N.Y. 1997]; Gerasimou v. Ambach, 636 F. Supp. 1504 [E.D.N.Y. 1986]; see also Bowen v. Mass., 487 U.S. 879, 893 [1988]).  In other words, actual funds may be awarded to a parent only where a parent obtains and pays for special education services to which it is ultimately determined the child was entitled (A.A. v. Bd. of Educ., 196 F. Supp.2d 259, 264 [E.D.N.Y. 2002]; see also Straube v. Fla. Union Free Sch. Dist., 801 F. Supp. 1164, 1182 [S.D.N.Y. 1992]).  In the instant case, when the hearing concluded on May 12, 2004, the 2004-05 school year had not yet begun, and respondents had yet to incur any costs for services from Elan for the 2004-05 school year, there is nothing to reimburse, and no authority under the IDEA to grant monetary damages (Taylor v. Vt., 313 F.3d at 786 n.14).

 

Respondent relies on Connors v. Mills for the proposition that a parent may obtain prospective tuition payment from the district before the school year begins (34 F. Supp.2d 795 [N.D.N.Y. 1998]).  In Connors, the court dismissed the parents' claim for tuition and in dicta discussed the concept of prospective tuition payment related to facts not before it.  Connors is factually distinguishable from the instant case and I am not persuaded that it provides authority to order school districts to pay tuition costs to parents prospectively.  As noted, when FAPE and unilateral parental placements are at issue, an order by a hearing officer or a State Review Officer for a district to pay tuition costs at an unapproved placement is permissible only as an equitable remedy to reimburse parents once they have obtained and paid for appropriate services. (20 U.S.C. 1412[a][10][C][ii]; 34 C.F.R. § 300.403[c]; see generally Burlington, 471 U.S. 359; A.A. v. Bd. of Educ., 196 F. Supp.2d 259).  Based upon the foregoing, respondents' request for prospective tuition reimbursement for the 2004-05 school year is denied.

 

I have also considered petitioner's contention that the impartial hearing officer erred by issuing a decision at the conclusion of the hearing but prior to his receipt of a written transcription of testimony that he had heard. Petitioner has cited no persuasive authority for the proposition that a hearing officer must both hear testimony and read transcripts of testimony heard before issuing a decision. I find no merit to this claim.

 

I have considered petitioner's and respondents' remaining contentions and I find them to be without merit.

 

 

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

 

THE CROSS-APPEAL IS DISMISSED.

 

IT IS ORDERED that the hearing officer's decision is hereby annulled to the extent it ordered residential placement for the student; and

 

IT IS FURTHER ORDERED, unless the parties otherwise agree, that petitioner's CSE convene within 30 days of the date of this decision to classify respondents' son, consistent with the tenor of this decision, and to recommend an appropriate program in the least restrictive environment consistent with the IDEA, New York Education Law and their respective implementing regulations.

 

 

 

 

 

Dated:

Albany, New York

 

__________________________

 

August 12, 2004

 

PAUL F. KELLY

STATE REVIEW OFFICER