The State Education Department
State Review Officer
Application of the BOARD OF EDUCATION OF THE HEMPSTEAD UNION FREE 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
Berkman, Henoch, Peterson & Peddy, P.C., attorneys for petitioner, Gilbert Henoch, Esq., of counsel
Neal H. Rosenberg, Esq., attorney for respondent
Petitioner, the Board of Education of the Hempstead Union Free School District, appeals from the decision of an impartial hearing officer which found that it failed to offer an appropriate educational program to respondent's daughter and ordered it to reimburse respondent for her daughter's residential tuition costs at the Family Foundation School (Family Foundation) for the 2004-05 school year. The appeal must be dismissed.
The student was 16 years old (Tr. p. 216) and enrolled at Family Foundation in 10th grade (Dist. Ex. 7 at p. 1) when the impartial hearing began on March 7, 2004. She has never attended petitioner's public schools (Tr. p. 51). After attending public school in a neighboring district from pre-school through second grade (Tr. pp. 50-51), the student attended parochial school (Tr. p. 206). She received home instruction through February 2003 prior to her unilateral placement at Family Foundation (Tr. pp. 433-34, 452). Her history includes an attempt to harm herself (Tr. p. 188), episodes of running away, and associating with gang members, in addition to having trouble making friends at school (Tr. pp. 290-91, 373), cutting classes (Parent Ex. D at p. 1), and acting out behaviors (Tr. pp. 53-54). The student's psychiatric symptoms have been variously diagnosed as Clinical Depression (Parent Ex. C at p. 2), Intermittent Explosive Disorder (id.), Bi Polar Disorder not otherwise specified (NOS) (id., Parent Ex. B), and Oppositional Defiant Disorder (Parent Ex. B).
Family Foundation, described as a private, residential facility for adolescents at high risk for delinquent and chemical abuse behaviors (Parent Ex. E at p. 1), has not been approved by the Commissioner of Education as a school with which school districts may contract to instruct students with disabilities. At a May 13, 2004 meeting1, petitioner's Committee on Special Education (CSE) found the student to be "educationally non-disabled" (Dist. Ex. 8). Consequently, no individualized education program (IEP) was recommended at that time (id.). The student's eligibility for special education programs and services as a student with a disability is in dispute (Tr. pp. 47-48).
A private psychiatrist first examined the student in May 2002 (Tr. pp. 185-87; Dist. Ex. 10 at p. 1). As a 14-year-old (Dist. Ex. 10 at p. 1) eighth grade student, the mother testified that the student was having difficulty fitting in within the school environment (Tr. p. 186). She was ultimately seen by the private psychiatrist on a monthly basis (Tr. p. 187). Although she denied wanting to harm herself, the student took an overdose of anti-depressant medication in June 2002 because she "felt so bad" (Dist. Ex. 10 at p. 1).
During her ninth grade year, the student attended private school (Tr. p. 242). Petitioner's Director of Pupil Personnel Services (Director) testified that she was first made aware of the student in November 2002, when respondent telephoned her and requested home tutoring (Tr. p. 52). She stated that respondent had informed her that the student was in the midst of medication therapy, and that respondent, in an attempt to control the student’s behavior, did not want the student to have the freedom of going back and forth to school (id.). According to testimony offered by the Director, respondent stated that she was having significant difficulty with the student running away and associating with gang members, as well as having difficulty with other similar acting out behaviors (Tr. pp. 53-54).
By letter dated November 20, 2002, the private psychiatrist informed petitioner that he was treating the student for depression and anxiety, and that she had experienced significant behavioral problems over the past few months (Dist. Ex. 15 at p. 1). The psychiatrist stated that the student had missed numerous days from school and was unable to return to school (id.). He requested home tutoring to enable the student to continue her studies while her condition was stabilized through medication and counseling services (id.).
By facsimile dated November 22, 2002, petitioner's PPS office forwarded the psychiatrist's letter to petitioner's high school nurse for an "immediate response" (Dist. Ex. 15 at pp. 2-3). Handwritten notes taken by the Director on November 26, 2002 indicate that, "Per physician's letter (attached) student will require home tutoring due to severe emotional problems (Dist. Ex. 16). Medication has been prescribed but must be monitored for approximately three months (id.). Home tutoring is approved until 2/28/03" (id.).
Home instruction commenced on December 2, 2002 (Tr. pp. 433-34) and concluded prior to the student’s unilateral placement at Family Foundation in February 2003 (Tr. pp. 190, 192, 196-97, 434, 451-52).
Testimony indicates that on December 12, 2002, respondent requested an evaluation through the Coalition on Child Abuse & Neglect (CCAN) (Tr. pp. 225-26). By letter dated December 19, 2002, the Coordinator of CCAN's Child Victim Advocate Program (Coordinator) informed petitioner's Director that she was in receipt of a December 17, 2002 letter from the student's psychiatrist, which indicated that the student was in need of a day treatment or a residential program (Parent Ex. C at p. 1). The Coordinator also stated that she had spoken to respondent and suggested that respondent send a letter to the Director requesting an emergency CSE to be convened immediately after the New Year (id.).
In the December 17, 2002 letter to which the Coordinator referred and enclosed with her December 19, 2002 correspondence to petitioner, the private psychiatrist indicated that he was treating the student for depression and anxiety, and reported an Axis I diagnosis of clinical depression, intermittent explosive disorder (Parent Ex. C at p. 2). He referenced the student's significant behavioral problems, specifying that she had run away from home, missed numerous days of school, and joined a gang, at which time she allowed herself to be physically harmed as part of an initiation. The private psychiatrist noted that he had prescribed medication to help her behavioral control, but that this treatment could often take up to three months to bring about significant change. The private psychiatrist's plan stated that the student was in need of a day program or possibly a residential program at that time.
On January 9, 2003, respondent informed petitioner that the medication therapy was not working and that she was still having difficulty with the student (Tr. pp. 58-59). Petitioner initiated a CSE evaluation (Tr. p. 58). In reference to the evaluations scheduled by petitioner (Parent Ex. F), respondent testified that she did not want to wait until March because this was an emergency situation and she was concerned that her daughter would harm herself (Tr. pp. 195-96, 258).
A January 25, 2003 social history completed by petitioner noted that respondent kept the student isolated for fear that she would run away again (Dist Ex. 1 at p. 3). It also indicated that respondent was exploring several options to assist the student (Dist. Ex. 1 at p. 2).
On an unspecified date, by way of a telephone communication with petitioner, respondent withdrew from the CSE evaluation process (Tr. p. 60). She stated that the student was escorted to Family Foundation on February 14, 2003 (Tr. pp. 196, 451-52, 454). Testimony reflects that the student has attended Family Foundation since that time (Tr. p. 123). The Director stated that she had initially received notice of the student's placement at "some school" in March as a result of contact being made with respondent due to the student’s failing to participate in the March 2004 educational evaluation (Tr. p. 461).
Respondent again referred the student to petitioner's CSE on March 15, 2004 (Tr. pp. 196-97; Dist. Ex. 4). Psychological, educational, and speech-language evaluations were conducted on April 29 and 30, 2004 (Dist. Exs. 5, 6, 7). Administration of the Wechsler Intelligence Scale for Children-Fourth Edition (WISC-IV) resulted in a Full Scale IQ score of 121, which placed the student in the superior range of intellectual functioning (Dist. Ex. 5 at p. 1). Composite and subtest WISC-IV scores ranged from average to very superior (id.). The Beery Developmental Test of Visual-Motor Integration (VMI) yielded a standard score of 84, which is in the low average range of functioning (Dist. Ex. 5 at pp. 2, 7). Academically, the student was performing within the average to high average range for her age (Dist. Ex. 6 at p. 4). Administration of the Clinical Evaluation of Language Fundamentals-Fourth Edition (CELF-4) revealed average core language, and receptive and expressive language scores (Dist. Ex. 7 at p. 2). The Behavior Assessment for Children - Self Report (Adolescent) yielded average scores in all areas, with the exception of low scores in the categories of attitude to school and school maladjustment and at risk scores in the areas of anxiety and interpersonal relations (Dist. Ex. 5 at p. 2).
At the time of her initial placement at Family Foundation, the student was not performing academically in a manner commensurate with her cognitive ability. Despite the student's superior full scale IQ (Dist. Ex. 5 at p. 1), respondent testified that the student had failed math, and had Cs and Ds, in addition to As in language and physical education during her eighth grade year (Tr. p. 241).
Petitioner's CSE convened on May 13, 2004 and determined that the student was "non-disabled" (Dist. Ex. 8). Testimony from the Director indicated the basis for this determination included the student's high grades and the fact that the emotional factors in her behavioral disorders seemed to have become well under control without medication (Tr. pp. 70-71). General education services were recommended (Dist. Ex. 8 at p. 1). Respondent did not agree with this determination and proceeded to mediation, which was unsuccessful (Tr. pp. 199-201, 203-04). Respondent subsequently initiated due process proceedings (Tr. p. 283).
An impartial hearing convened on March 7, 2005 and concluded on May 5, 2005, after three days of hearings. By decision dated July 8, 2005, the impartial hearing officer found petitioner's characterization of the provision of home instruction with the possibility of non-mandated counseling as a pre-referral intervention to be “seriously misguided” (IHO Decision, p. 15).
With respect to procedural flaws attributed to petitioner, the impartial hearing officer found that petitioner's actions compromised the due process rights of the parents, rising cumulatively to the loss of an educational opportunity and the provision of a free appropriate public education (FAPE) (IHO Decision, p. 15). The impartial hearing officer found that there was no evidence to suggest that a duly licensed educator or an additional parent member participated in the CSE meeting (IHO Decision, p. 16). The impartial hearing officer found the lack of a duly constituted CSE invalidated the recommendation of the CSE (IHO Decision, p. 17).
The impartial hearing officer concluded that the CSE failed to conduct a physical examination, functional behavioral assessment, current social history or update, vocational assessment, and classroom observation as required by section 200.4 of the Regulations of the Commissioner of Education (IHO Decision, p.17).
Therefore, she concluded that the determination resulting from the May 13, 2004 CSE meeting that the student was ineligible for special education was predicated upon insufficient and inadequate information, and could not be sustained (id.). She concluded that petitioner, under the circumstances, should have “certif[ied] her into special education with appropriate therapeutic and educational services” (IHO Decision, p.15).
With respect to the appropriateness of the educational program at Family Foundation, the impartial hearing officer found that the student made substantial progress at Family Foundation, as supported by opinions expressed by the school's principal, therapists, and teachers, and that the structure and program, for this student, contributed to that progress (IHO Decision, p. 18). The impartial hearing officer also concluded that respondent had fulfilled her equitable responsibilities and directed petitioner to reimburse respondent for tuition costs arising from the student's 2004-05 school year enrollment at Family Foundation (IHO Decision, p. 19).
The petition asserts that the impartial hearing officer erroneously: 1) stated that there was no teacher at the CSE meeting, which ignored the presence of petitioner's Director of Special Education at the CSE meeting; 2) faulted petitioner for not proving the academic credentials of the Director of Special Education; 3) failed to acknowledge that the Family Foundation principal (principal) participated in the meeting by telephone; 4) ignored the fact that no classroom teacher in petitioner's school district had ever taught the student; 5) faulted the CSE for lack of a “parent advocate” despite the presence of a child advocate and respondent’s waiver regarding the presence of the “parent advocate”; 6) misstated the law regarding the “parent advocate waiver”; 7) misstated the purpose of petitioner's administration of standardized educational tests; 8) failed to support her conclusion that, given the composition of the CSE, she was unpersuaded that the CSE's recommendation reflected a consensus of opinion; and 9) erred in determinations related to home instruction. Petitioner requests that the impartial hearing officer's decision be set aside and that the proceeding be dismissed.
The purpose behind the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1487) is to ensure that students with disabilities have available to them a FAPE (20 U.S.C. § 1400[d][A])2. A FAPE consists of special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP (20 U.S.C. § 1401; 34 C.F.R. § 300.13; see 20 U.S.C. § 1414[d]). 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 (Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359 ). The parent's failure to select a program approved by the state in favor of an unapproved option is not itself a bar to reimbursement (Florence County Sch. Dist Four v. Carter, 510 U.S. 7 ). The board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (M.S. v. Bd. of Educ., 231 F.3d 96, 102 [2d Cir. 2000], cert. denied, 532 U.S. 942 ; Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 122 [2d Cir. 1998]; Application of the Bd. of Educ., Appeal No. 05-031; Application of a Child with a Disability, Appeal No. 05-005; Application of a Child with a Disability, Appeal No. 04-021).
To meet its burden of showing that it had offered to provide a FAPE to a student, the board of education must show (a) that it complied with the procedural requirements set forth in the IDEA, and (b) that the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176, 206, 207 ). Not all procedural errors render an IEP legally inadequate under the IDEA (Grim, 346 F.3d at 381). 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]), e.g., resulted in the loss of educational opportunity (Evans v. Bd. of Educ., 930 F. Supp.83, 93-94 [S.D.N.Y. 1996]), seriously infringed on the parents' opportunity to participate in the IEP formulation process (see W.A. v. Pascarella, 153 F. Supp. 2d 144, 153 [D. Conn. 2001]; Brier v. Fair Haven Grade Sch. Dist., 948 F. Supp. 1242, 1255 [D. Vt. 1996]), or compromised the development of an appropriate IEP in a way that deprived the student of educational benefits under that IEP (Arlington Cent. Sch. Dist. v. D. K., 2002 WL 31521158 [S.D.N.Y. Nov. 14, 2002]). As for the program itself, the Second Circuit has observed that "'for an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression'" (Weixel v. Bd. of Educ., 287 F3d 138, 151 [2d Cir. 2002], quoting M.S., 231 F.3d at 103 [citation and internal quotation omitted]; see Walczak, 142 F.3d at 130). This progress, however, must be meaningful; i.e., more than mere trivial advancement (Walczak, 142 F.3d at 130). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a]).
In order to make an appropriate recommendation, it is necessary to have adequate and sufficient evaluative information (Application of a Child with a Disability , Appeal No. 05-062; Application of a Child with a Disability, Appeal No. 02-114; Application of a Child with a Disability, Appeal No. 02-100; Application of a Child with a Disability, Appeal No. 02-044; Application of the Bd. of Educ., Appeal No. 02-008). When a child suspected of having a disability is referred to a CSE, the CSE must ensure that an individual evaluation of the referred child is performed. An individual evaluation must include at least a physical examination, an individual psychological evaluation, a social history, an observation and other appropriate assessments or evaluations as necessary to ascertain the physical, mental, behavioral and emotional factors which contribute to the suspected disability (8 NYCRR 200.4 [b]). Neither federal nor state regulations prescribe a particular set of tests, which must be used in each evaluation (34 C.F.R. § 300.532; 8 NYCRR 200.1[aa]). Also, a functional behavioral assessment (FBA) must be performed as part of an initial evaluation of a child suspected of having a disability if the student's behavior impedes his or her learning or that of others (8 NYCRR 200.4[b][v]).
While parents are not held as strictly to the standard of placement in the LRE 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 (M.S. v. Bd. of Educ., 231 F.3d at 105; see Rafferty v. Cranston Pub. Sch. Comm., 315 F.3d 21 [1st Cir. 2002]). The test for a parental placement is that it is appropriate, not that it is perfect (Warren G. v. Cumberland Co. Sch. Dist., 190 F.3d 80, 84 [3d Cir. 1999]; see also M.S., 231 F.3d at 105). A residential placement is one of the most restrictive educational placements available for a student (Application of a Child with a Disability, Appeal No. 03-066; Application of the Bd. of Educ., Appeal No. 01-091), and it is well settled that a residential placement is not appropriate unless it is required for a student to benefit from his or her educational program (Walczak, 142 F.3d at 122; Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1121-22 [2d Cir. 1997]; Application of a Child with a Disability, Appeal No. 03-066; Application of a Child with a Disability, Appeal No. 03-062; Application of a Child with a Disability, Appeal No. 03-051; Application of a Child with a Disability, Appeal No. 01-083; Application of a Child with a Disability, Appeal No. 98-2; Application of a Child with a Disability, Appeal No. 95-33). A disabled child is not entitled to residential placement merely because it would more nearly enable the child to reach his or her full potential (Walczak, 142 F.3d at 132 [reimbursement limited to non-residential portion of program]; Application of the Bd. of Educ., Appeal No. 03-062).
I agree with the determination of the impartial hearing officer that the CSE meeting was improperly constituted. I also concur with the impartial hearing officer's determination that a FBA was not performed, and that the record does not provide evidence of the student's physical examination or of an observation of the student (Tr. p. 13). I find the failure to conduct a FBA, a physical examination, and an observation to be inconsistent with state regulations (8 NYCRR 200.4[b][i], [iv] and [v]). I also concur that petitioner failed to meet its burden of establishing the appropriateness of its CSE's recommendation that the student not be classified as a student with a disability. I have carefully considered the impartial hearing officer’s determinations as to eligibility for special education and the appropriateness of the private placement, and find under the facts presented, and taking into consideration the legal arguments raised by petitioner, that there is no need to modify the determination of the impartial hearing officer.
I have considered petitioner's remaining contentions and I find them to be without merit.
THE APPEAL IS DISMISSED.
Albany, New York
October 12, 2005
PAUL F. KELLY
1 In some instances, the record incorrectly refers to the May 13, 2004 CSE meeting as having taken place on an alternate date. For the sake of accuracy, all references to the May 13, 2004 CSE meeting will reflect the correct date (Dist. Ex. 13).
2 On December 3, 2004, Congress amended the IDEA, however, the amendmnts did not take effect until July 1, 2005 (see Individuals with Disabilities Education Improvement Act of 2004 [IDEIA], Pub. L. No. 108-446, 118 Stat. 2647). Citations contained in this decision are to the statute as it existed prior to the 2004 amendments. The relevant events in the instant appeal took place prior to the effective date of the 2004 amendments to the IDEA, therefore, the provisions of the IDEIA do not apply.