The Univeristy of the State of New York Emblem
The State Education Department
State Review Officer

 

No. 05-122

 

 

Application of a CHILD SUSPECTED OF HAVING 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 Bedford Central School District

 

 

Appearances:
S. Jean Smith, Esq., attorney for petitioners

Ingerman Smith, LLP, attorney for respondent, Neil M. Block, Esq., of counsel

DECISION

Petitioners appeal from the decision of an impartial hearing officer which upheld the determination of respondent's Committee on Special Education (CSE) that petitioners' son should not be classified as a student with a disability and which denied their request to be reimbursed for their son's tuition and costs at the Family Foundation School (Family Foundation) for the 2004-05 school year.  The appeal must be dismissed.

Petitioners' son was 18 years old and had graduated from Family Foundation when testimony was taken at the impartial hearing in August 2005 (Tr. pp. 102-03).  The student's prior educational history is described in a decision issued April 28, 2004, Application of a Child Suspected of Having a Disability, Appeal No. 04-013, and will not be repeated in detail in this decision.

The appeal in Application of a Child Suspected of Having a Disability, Appeal No. 04-013, was taken from an impartial hearing officer's decision which denied petitioners' prior request that their son be classified as a student with an emotional disturbance and for reimbursement of his tuition and expenses at Family Foundation for the 2003-04 school year.  The determination in Application of a Child Suspected of Having a Disability, Appeal No. 04-013 concurred with the impartial hearing officer and found that the record did not establish that petitioners' son exhibited any one of the five characteristics for classification as a student with an emotional disturbance over a long period of time and to a marked degree that adversely affected the student's educational performance (see 8 NYCRR 200.1[zz][4][i] through [v]).1   

By letter dated August 12, 2004, petitioners conveyed to respondent "a formal request for classification pursuant to the Individuals with Disabilities Education Act" (Dist. Ex. 1).  In correspondence dated September 21, 2004, petitioners requested that their son be classified as a student with an emotional disturbance (see Dist. Ex. 4).  By letter dated December 3, 2004, petitioners advised respondent that they were seeking tuition reimbursement at Family Foundation for the 2004-05 school year and requested an impartial hearing if respondent did not agree to the requested reimbursement (see Dist. Ex. 6).  By letter dated December 10, 2004, respondent provided notice of the appointment of an impartial hearing officer  (see Dist. Exs. 7, 11).

A pre-hearing conference was held on December 21, 2004 (see IHO Ex. 1).  The impartial hearing officer's written summary of the conference indicates that respondent had not responded to petitioners' request for a CSE meeting (see IHO Ex. 1 at p. 1) and that respondent agreed to schedule a CSE meeting to consider any new information petitioners wanted to present (IHO Ex. 1 at p. 2).

The CSE met on January 11, 2005 (see Parent Ex. B).   The CSE reviewed a number of the student's prior evaluations from March, April, and July 2003 (see Tr. pp. 23-25, 26, 125-27).  At the meeting, petitioners' attorney informed the CSE that the student was last diagnosed with a dysthymic disorder and that there was no reason to believe the diagnosis had changed (Parent Ex. B at p. 3).  The attorney also advised the CSE that an appointment with the psychiatrist at Family Foundation had been arranged for the next day, that the student would be seen at that time, and that an update would be provided to the CSE (Parent Ex. B at pp. 3, 13).    Petitioners' counsel also requested the underlying test results relating to the student's eligibility for Section 504 services (see Section 504 of the Rehabilitation Act of 1973 [29 U.S.C. 701-796[l]) (see Parent Ex. B at p. 4; see also Parent Ex. D-2 at p. 2, Parent Ex. D-5 at p. 4, Parent Ex. D-8 at pp. 1, 2).

During the January 11, 2005 CSE meeting, a social worker from Family Foundation participated by telephone (see Parent Ex. B at pp. 9-24).  The social worker reported that the student was doing well, his grades had progressively improved since enrollment at Family Foundation, and he was planning to graduate in June 2005 (Parent Ex. B at p. 10).  The social worker indicated that the student had learned strategies to address his anxiety and depression, manifested fewer symptoms of anxiety and depression, and was no longer taking medication to relieve his symptoms (Parent Ex. B at p. 11).  The social worker described the student's symptoms, which she said included nervousness, distraction, fidgeting and anger, and indicated that she did not know if these symptoms could be attributable to a deficit in attention (Parent Ex. B at pp. 11-12).  The social worker reported that the student did not receive clinical services at Family Foundation, but that he received group counseling once a week for "about ninety minutes or so," and also received family counseling (Parent Ex. B at pp. 13, 21, 22).  The social worker reported that the student also attended AA (Alcoholics Anonymous) at Family Foundation as well as off campus (Parent Ex. B at p. 22).  She noted that the student had previously been seen every six weeks by the psychiatrist who monitored medication for students at Family Foundation (Parent Ex. B at pp. 13, 18).  She suggested that, because this psychiatrist had discontinued the student's medication in April 2004, petitioners' son no longer required psychiatric services (id.). The social worker described the student's relationships with adults as "very respectful" and reported that he had developed appropriate peer relationships, in some cases assuming mentoring responsibilities for younger students (Parent Ex. B at p. 14).  Academically, the student was taking advantage of opportunities to participate in class, was taking some college-level courses, and was successfully managing the responsibilities of academics, extracurricular activities and intramural sports (Parent Ex. B at pp. 16-17).  The student was planning on attending college (Parent Ex. B at p. 16).  In October 2004, he had taken the SAT for college and reportedly achieved an overall score of 1080 (Parent Ex. B at p. 17).  The social worker also stated that Family Foundation was "very structured" and that petitioners' son was "doing well in school because of the structure and discipline in the classrooms" (Parent Ex. B at p. 20).

At its January 11, 2005 meeting the CSE determined, despite the father's disagreement, that the student did not meet the requirements for classification as a student with an emotional disturbance (Parent Ex. B at pp. 30-33).  By letter dated January 11, 2005, the CSE Chairperson notified petitioners that the CSE had "recommended" that their son did not meet the criteria for classification as a student with a disability and that he did not require special education at that time (Dist. Ex. 8 at p. 1).

Thereafter, petitioners provided the CSE Chairperson with a one-page letter from Family Foundation's psychiatrist dated January 12, 2005 (Tr. pp. 59-60, 67-68; see Dist. Ex. 9).  The psychiatrist reported that the student had first been referred to him in April 2003 because of a dysthymic disorder for which medication had previously been prescribed (Dist. Ex. 9).  The psychiatrist indicated that he had continued the student's medication through May 2004, but that his "Dysthymic condition continues" (id.).  He stated that the student's "bouts of depression" continued and were addressed through counseling provided at Family Foundation, and that the close supervision and individual attention at Family Foundation allowed the student to "function better" (id.).  The psychiatrist further stated that while the student had "made progress," the progress was "in large part attributed to the structured environment he is in" and that "the 24 hour support was, is, and continues to be vital to his physical, emotional, and psychological well-being" (id.). The psychiatrist recommended that the student remain at Family Foundation until he successfully completed its program (id.).  The CSE Chairperson testified that she did not reconvene the CSE to consider the psychiatrist's letter because "there is nothing in this letter that is new information that would affect the need for a CSE meeting" (Tr. p. 91).

The impartial hearing officer and the parties held a conference call on January 12, 2005 (see IHO Ex. 2).  It was agreed that petitioners would submit a statement identifying the issues for the impartial hearing by January 24, 2005, and that respondent would respond by January 31, 2005 (IHO Ex. 2).

Petitioners subsequently submitted numerous documents to the impartial hearing officer (see Parent Ex. C; see also Tr. pp. 20, 25).  Petitioners argued, among other things, that they did not have a full and fair opportunity to litigate issues in the prior case relating to the 2003-04 school year, that respondent continued to fail to provide requested information, and that the CSE failed to seek and obtain additional information on the student when petitioners requested that he be classified in August 2005 (see Parent Ex. C at Memorandum of Law).  In reply, respondent argued that the impartial hearing request was "barred by the doctrine of issue preclusion," petitioners' request for records was addressed at the prior hearing and had been complied with, and respondent was not required to conduct new evaluations of the student (see Dist. Ex. 12).  I note that respondent's submission to the impartial hearing officer contained a letter dated January 24, 2005, to petitioners' attorney from respondent's attorney which, among other things, advised petitioners' attorney that the student's "school records, including his building and confidential file, could be reviewed by appointment" (see Dist. Ex. 12 at Ex. M).

The impartial hearing officer rendered an interim decision on March 18, 2005  (see Dist. Ex. 13).  He determined that the previous decision could not be reopened, concluded that whether respondent was required to undertake a full evaluation and review of the student was a legitimate issue for review, and indicated that he would hold a hearing to address the student's "current" needs and the January 2005 CSE meeting (Dist. Ex. 13 at pp. 6-7, 8-9).

The impartial hearing officer heard testimony on August 18, 2005 (Tr. p. 1) and rendered a decision on November 3, 2005 (IHO Decision, p. 14).   He determined that he did not need to decide whether the CSE was required to conduct a complete evaluation, or whether the existing data were sufficient, but he concluded  "that the CSE should have reviewed the [August 2004] referral and that it should have responded in accordance with the regulations" (IHO Decision, p. 10).

The impartial hearing officer stated that he would defer to the findings made in the prior hearing and appeal (Application of a Child with a Disability, Appeal No. 04-013), including the finding that the student was not eligible for classification, unless the record showed that the student's needs had changed (IHO Decision, p. 11).  He then reviewed the additional information in the record to determine whether the student met the definition of a student with a disability  (see IHO Decision, pp. 11-14).  He reviewed the evidence, citing excerpts from the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV) provided by petitioners (see Parent Ex. C at Memorandum of Law on Preclusion at Ex. 8), the comments the Family Foundation social worker provided to the CSE (see Parent Ex. B at pp. 10-24), information about the student's grades during the 2004-05 school year (see Dist. Ex. 10; Tr. p. 120), and the letter from the Family Foundation psychiatrist (see Dist. Ex. 9).  The impartial hearing officer concluded that the record did not support a finding that the student was a student with an emotional disturbance in accord with state regulation and that the CSE's determination that petitioners' son was ineligible for classification was appropriate  (see IHO Decision, pp. 11-14).  He also agreed with respondent that the psychiatrist's letter contained no new information that the CSE was required to review (IHO Decision, p. 13 n.3).  He did not address respondent's contention that petitioners may not be reimbursed because the student had not received special education in respondent's district before he enrolled at Family Foundation (IHO Decision, p. 14).  The impartial hearing officer ordered that petitioners' request for reimbursement be denied (id.)

Petitioners seek reimbursement for tuition and costs at Family Foundation for the 2004-05 school year, "including restitution to the New York State Crime Victims Board" which petitioners assert had reimbursed them for the costs of counseling services provided to the student.    Petitioners contend that the impartial hearing officer erred in permitting respondent to continue to fail to provide records underlying respondent's determination regarding the student's eligibility for section 504 services; that the CSE chairperson improperly dismissed and the CSE improperly did not consider the January 2005 letter from the psychiatrist at Family Foundation; that the impartial hearing officer erred in ignoring the failure of the CSE to conduct updates of evaluations and observations after petitioners' August 2004 request for classification; that the CSE's statement of reasons that the student was found ineligible for special education (see 8 NYCRR 200.4[d][1]) was not accurate; that the impartial hearing officer mischaracterized certain information in the record;2 and that the impartial hearing officer should have determined that their son was a student with a disability.  I note that petitioners do not appeal the impartial hearing officer's determination in his interim decision not to allow them to reopen issues or matters with respect to the previous impartial hearing.

Respondent asserts that the impartial hearing officer correctly concluded that the student did not meet any of the five criteria set forth in 8 NYCRR 200.1[zz][4] for classification as a student with an emotional disturbance and that the student is therefore not entitled to tuition reimbursement for the 2004-05 school year.  Respondent also asserts that petitioners' request for records related to their son was addressed at the prior hearing and that when petitioners renewed their request during the 2004-05 school year respondent advised them that the student's file was available for their inspection; that respondent was not required to conduct new evaluations of the student after petitioners requested that the CSE classify their son in August and September 2004; and that the impartial hearing officer properly concluded that petitioners' son was not a student with a disability.  Respondent also restates its contention that the student is precluded from receiving tuition reimbursement because he was not receiving special education services at the time he was unilaterally placed at Family Foundation, which was on April 15, 2003.

I do not agree with petitioners' contention that the impartial hearing officer erred with respect to their claim that they were denied access to documents relative to the student's section 504 classification and which they requested at the January 11, 2005 CSE meeting (see Parent Ex. B at p. 4; see also Parent Ex. D-2 at p. 2; Parent Ex. D-5 at p. 4; Parent Ex. D-8 at pp. 1, 2).  I note that after the CSE meeting, respondent's attorney offered to provide petitioners with a further opportunity to review the student's records (see Dist. Ex. 12 at Ex. M).  Moreover, while petitioners continued to assert at the impartial hearing that the requested documents had not been provided to them, they make no claim that they followed up on respondent's post-CSE meeting offer of inspection and that the requested records were not provided.  Further, the impartial hearing officer advised petitioners' attorney during the impartial hearing (Tr. p. 30) that she was free to subpoena the documents (see Application of the Bd. of Educ., Appeal No. 00-022; Application of the Bd. of Educ., Appeal No. 96-79; see also N.Y. Civil Practice Law and Rules 2303[a]).  Petitioners' attorney, however, indicated that she would proceed otherwise (Tr. p. 31).

Further, I do not agree with petitioners' assertion that the impartial hearing officer ignored the CSE's decision not to conduct additional evaluations after petitioners' August 2004 request that the student be classified.  To the contrary, as indicated above, the impartial hearing officer found "that the CSE should have reviewed the referral and that it should have responded in accordance with the regulations" (see IHO Decision, p. 10).

Petitioners assert that respondent's statement of reasons (see Dist. Ex. 8 at pp. 1, 2-3) that the student was not eligible for special education (see 8 NYCRR 200.4[d][1]) does not offer a basis for a finding of ineligibility and does not necessarily correspond to the transcript of the CSE meeting.  Respondent conveyed its statement of reasons by letter dated January 11, 2005, which notified petitioners that its CSE had recommended that their son did not meet the criteria to be classified as a student with a disability and enclosed "information from the meeting" detailing "the reasons and evaluations used by the Committee as the basis for its decision" (see Dist. Ex. 8 at pp. 1, 2-3).  I have reviewed the CSE's statement of reasons in support of its conclusion that the student was not eligible for special education.  I agree that respondent could have been more specific with respect to its conclusion that the student did not meet the eligibility requirements for a student with a disability and could have more clearly explained why it believed that the student was not a student with an emotional disturbance as defined by the state regulations at 8 NYCRR 200.1(zz)(4).  However, I find that this does not provide a basis to overturn the CSE's determination (cf. Application of a Child With a Disability, Appeal No. 95-85).  With respect to petitioners' assertion that respondent's statement, which was in the form of minutes of the January 11, 2005 CSE meeting, does not correspond to the transcript of the CSE meeting, I find that petitioners have not pointed to any discrepancy between respondent's statement and the transcript of the CSE meeting sufficient to require that the CSE's determination be overturned.  Contrary to petitioners' suggestion, the statement includes information from the Family Foundation social worker that their son was "much improved," and that he was "coping with depression" by forcing himself "to stay active and responsive" (see Dist. Ex. 8 at p. 2).  Further, contrary to petitioners' suggestion that the CSE's statement did not indicate that the student was receiving both family counseling and group counseling, the statement sets forth that the student received weekly group counseling (see Dist. Ex. 8 at p. 3). 

Petitioners also contend that the impartial hearing officer's statement that "the CSE discussed the information petitioners presented" is "not born out by the CSE record" (IHO Decision, p. 8).  I disagree. The transcript of the January 11, 2005 CSE meeting shows that the CSE provided the Family Foundation social worker with an opportunity to provide it with information relative to the student (see Parent Ex. B at pp. 9, 10-11), that CSE members, as well as the attorneys for petitioners and respondent, asked the Family Foundation social worker questions about the student (see Parent Ex. B at pp. 11-17, 19-23), that the CSE Chairperson sought feedback from the Family Foundation social worker regarding her understanding of information provided by her to the CSE (see Parent Ex. B at pp. 17-19),  and that the CSE considered information provided to it by the Family Foundation social worker in determining whether petitioners' son was a student with a disability (see Parent Ex. B at pp. 25-34). 

The impartial hearing officer concluded that the CSE did not need to reconvene to review the January 2005 letter from the Family Foundation psychiatrist.  Under the circumstances, it may have been appropriate for the CSE to reconvene to review petitioners' submission.  However, I see no reason to disturb the impartial hearing officer's conclusion that the letter provided insufficient information to support a finding that petitioners' son should be classified as a student with a disability. 

I now turn to petitioners' contention that their son is a student with a disability in accordance with the IDEA.

Congress enacted the IDEA (20 U.S.C. 1400-1487)[1997]3 to ensure that all children with disabilities have available to them a FAPE4 that emphasizes special education and related services designed to meet the students' unique needs (20 U.S.C. 1400[d][1][A]) [1997].  A child with a disability is a student who has been evaluated and been determined to have either mental retardation, a hearing impairment including deafness, a speech or language impairment, a visual impairment including blindness, emotional disturbance, an orthopedic impairment, autism, traumatic brain injury, an other health impairment, a specific learning disability, deaf-blindness, or multiple disabilities, and who, by reason thereof, needs special education and related services (see 34 C.F.R. 300.7[a] [1]; see also 8 NYCRR 200.1[zz]).  When a CSE recommends that a student be classified as a student with an emotional disturbance, a nexus must exist between the student's emotional problems and performance in school (Application of a Child Suspected of Having a Disability, Appeal No. 01-108).    In order to be classified as a child with a disability under federal regulation, or its state counterpart, a student must have a mental, physical or emotional condition that adversely affects the student's performance to the extent that he or she requires special education and/or related services (34 C.F.R. 300.7[a][1]; 8 NYCRR 200.1[zz]; Application of a Child Suspected of Having a Disability, Appeal No. 94-36; Application of a Child Suspected of Having a Disability, Appeal No. 94-42).

Petitioners contend that the record required the impartial hearing officer to conclude that their son should be classified as having an emotional disturbance.  State regulations provide that

Emotional disturbance means 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][4]; see also 34 C.F.R. 300.7[c][4]).

The impartial hearing officer concluded that the evidence did not show that during the 2004-05 school year petitioners' son exhibited any of the five characteristics to the degree required by state regulations (see 8 NYCRR 200.1[zz][4])(IHO Decision, pp. 12-14).  I have reviewed the record carefully and concur with the impartial hearing officer's finding.

Petitioners contend that the student exhibited the fourth characteristic, a generally pervasive mood of unhappiness or depression, during the period at issue in this appeal and reference diagnoses in letters dated July 2003 (Parent Ex. D-6) and January 2005 (Dist. Ex. 9).   In 2003, the student had diagnoses of major depression, single episode, severe without psychotic features as well as Post-Traumatic Stress Disorder (PTSD), for which medications had been prescribed  (see Parent Ex. D-6; Tr. p. 113).  On January 12, 2005, Family Foundation's psychiatrist, who had monitored the student's medication during the 2003-04 school year, reported that the student had been under his care for dysthymic disorder between April 2003 and May 2004 (Tr. pp. 117-19; Dist. Ex. 9).  In his January 12 letter, the psychiatrist indicated that the student continued to suffer from "bouts of depression" and that, while the student's dysthymic condition continued, he had made progress at Family Foundation (see Dist. Ex. 9).  Petitioners also referenced the DSM-IV definition of dysthymic disorder which states that "(t)he essential feature of dysthymic disorder is a chronically depressed mood that occurs for most of the day more days than not for at least two years" (one year for children) (see Parent Ex. C at document denominated Memorandum of Law on Preclusion at Ex. 8).

The evidence presented is insufficient to establish that a mood of unhappiness or depression extended as required by the regulations "over a long period of time" to a marked degree with respect to the 2004-05 school year at issue in this appeal. The Family Foundation psychiatrist had not seen the student since May 2004, eight months before the date of his letter.  Further, the psychiatrist's letter does not provide information with respect to the frequency or timing of the student's "bouts of depression," does not explain the basis of the statement that the student's "Dysthymic condition continues," and does not explicitly state that the student's dysthymic disorder had continued during the 2004-05 school year for any specified or particular period of time to a marked degree (see Dist. Ex. 9).

In addition, I agree with the finding of the impartial hearing officer that the report provided to the CSE by the Family Foundation social worker, the student's grades, and the January 2005 letter from the school's psychiatrist all fail to provide information to establish that the student's condition adversely affected his educational performance.  The Family Foundation social worker reported to the January 11, 2005 CSE that the student's grades had progressively improved and that they were looking to a June 2005 graduation (Parent Ex. B at p. 10).  She also indicated to the CSE that the student's peer relationships were "very good" and his adult relationships were "very respectful" (Parent Ex. B at p. 14).  She also indicated that he was participating in extracurricular activities (Parent Ex. B at pp. 13-14) and that he was participating in class and asking questions (Parent Ex. B at p. 16).  Moreover, the student's academic performance has been consistent with his cognitive abilities, which testing in 2003 indicated are in the high average to low average range (see Parent Ex. D-2 at pp. 2-3, 4, 7).  During the 2004-05 summer session at Family Foundation, 15 of the student's 20 monthly grades were in the 80's or 90's; four were in the 70's, and one was a 65, in "liv skills" (see Dist. Ex. 10 at p. 3).  The student testified that his grades were "basically similar" during the remainder of the 2004-05 school year (Tr. pp. 119-20) and that his final grade point average for that school year was "a 3.0" (id.).  Petitioners' son graduated from Family Foundation in June 2005 and he received a New York State Regents Diploma (Tr. pp. 102-103; see Parent Ex. B at p. 10).  He expected to begin college a week after his August 18, 2005 testimony at the impartial hearing (Tr. p. 120).

Petitioners contend that the restrictive environment at Family Foundation was responsible for the student's educational performance during the 2004-05 school year.5  In response to a question from petitioners' counsel at the January 11, 2005 CSE meeting, the Family Foundation social worker stated that the environment at the school was "very structured" and that the student was doing well in school because of "the structure and the discipline in the classrooms" (Parent Ex. B at p. 20).  Similarly, the January 12, 2005 letter from the Family Foundation psychiatrist stated that the student's progress was "in large part attributed to the structured environment he was in" (see Dist. Ex. 9).

The record is not persuasive with respect to this contention.  The social worker did not adequately explain at the CSE meeting what she meant by an environment that was "very structured."  Nor did she adequately explain how the "structure" at Family Foundation was able to help the student.  The psychiatrist's letter likewise does not adequately describe what constituted the "structured environment" which in large part he attributed the student's progress.  Nor does his letter identify in sufficient detail how the "structured environment" had addressed the student's needs and the basis upon which he believed that such structure was necessary for the student's well-being and ability to function.  Although the student testified at the impartial hearing, as did a Catholic priest who was chaplain at Family Foundation (see Tr. pp. 73-84, 102-122), their testimony contains little specific information about the structure of the Family Foundation program and does not provide a factual basis upon which I may conclude that the "structure" of that program was responsible for the student's educational performance during the 2004-05 school year.

Petitioners' claim that the "support services" the student received at Family Foundation allowed their son to complete high school is not supported by the record. 5  The record lacks specific information with respect to the presence, characteristics, and benefits of such services from which such a conclusion could be drawn.  The letter from the Family Foundation psychiatrist stated that "(t)he 24 hour support was, is, and continues to be vital to (the student's) physical, emotional, and psychological well-being" (Dist. Ex. 9).  However, the psychiatrist did not define or explain what was involved in the school's "24-hour support" that he stated was vital to the student or why and how such "24-hour support" would or did help the student.  The Family Foundation social worker also advised the January 11, 2005 CSE that the student had "somebody to talk to really 24 hours a day"  (Parent Ex. B at p. 20).  However, she provided insufficient information about what particular services this involved; how often the student used such services; the focus, purpose or function of such services; the needs these services addressed; and the extent to which such services would help the student.  The social worker also reported to the CSE that the student received group counseling, family counseling, and had also spoken on several occasions to a social worker, and participated in AA (see Parent's Ex. B at pp. 13, 20-22).  The record contains little information about these services, the Family Foundation staff who provided them to the student, or information about their qualifications or background other than that the individual who conducted the student's weekly group counseling sessions was not a certified therapist (see Parent Ex. B at p. 21).  The record also lacks sufficient information about the purpose and focus of the student's group counseling, the needs of the student that such counseling was to meet, and the benefits to the student that such counseling provided.  Finally, the information in the record does not show that the student's participation in "support services" at Family Foundation made it possible for him to complete high school as asserted by petitioners.  The record indicates that, at least once a week, the student saw a Catholic priest who was chaplain at Family Foundation (see Tr. pp. 73, 74).  Again, however, the record contains insufficient information for me to conclude that this was important to the student's educational performance at Family Foundation.

As petitioners' son is not a student with a disability and since the remedy of tuition reimbursement under the IDEA is available only to a student who meets the eligibility criteria of a student with a disability (Application of a Child Suspected of Having a Disability, Appeal No. 01-007; Application of a Child Suspected of Having a Disability, Appeal No. 98-48) it is not necessary to reach petitioners' request for tuition reimbursement for the cost of her son's tuition at Family Foundation for the 2004-05 school year (Application of a Child Suspected of Having a Disability, Appeal No. 04-113; Application of a Child with a Disability, Appeal No. 02-040).  The impartial hearing officer was therefore correct to deny petitioners' request for such tuition reimbursement.

I have reviewed petitioners' and respondent's remaining contentions and I find them to be without merit.

THE APPEAL IS DISMISSED.

 

Dated:

Albany, New York

 

__________________________

 

February 23, 2006

 

PAUL F. KELLY
STATE REVIEW OFFICER

 

1  Petitioners have appealed Application of a Child Suspected of Having a Disability, Appeal No. 04-013 to the United States District Court for the Southern District of New York (see Dist. Ex. 12 at Exs. B, C) where their case is currently pending.

2  Specifically, petitioners object to the impartial hearing officer's statement that the social worker reported to the January 11, 2005 CSE that the student was no longer involved in counseling (IHO Decision, p. 12).  However, the transcript of the CSE meeting reflects that social worker reported to the CSE that the student was receiving group and family counseling (Parent Ex. B at pp. 13, 21, 22).  I note that the impartial hearing officer correctly stated in an earlier part of his decision that during the 2004-05 school year, the student was not receiving clinical counseling (IHO Decision, p. 4). While it is true that the impartial hearing officer's decision apparently erred with respect to his characterization of the social worker's report to the CSE, this amounts to harmless error.

3  On December 3, 2004, Congress amended the IDEA, effective July 1, 2005 (see Individuals with Disabilities Education Improvement Act of 2004 [IDEA 2004], Pub. L. No. 108-446, 118 Stat. 2647 [2004]). Since the relevant underlying events of this appeal occurred prior to the effective date of the 2004 amendments, the new provisions of the IDEA 2004 do not apply, and citations contained in this decision are to the statute as it existed prior to the 2004 amendments.

4 The term "free appropriate public education" means special education and related services that--

(A) have been provided at public expense, under public supervision and direction, and without charge;

(B) meets the stands of the State educational agency;

(C) include an appropriate preschool, elementary, or secondary school education in the State involved; and,

(D) are provided in conformity with the individualized education program required under section 1414(d) of this title.

(20 U.S.C. 1401[8]; see 34 C.F.R. 300.13; 20 U.S.C. 1414[d]).

5  The record contains information from respondent with respect to a visit to Family Foundation in 2003 by a social worker employed by respondent and that social worker's 2003 testimony in the previous impartial hearing relative to that visit (see Dist. Ex. 8 at pp. 3-4; Parent Ex. C at pp. 423-453 [odd only], 487).  However, I am not able to conclude from the record in this case that the program in existence at Family Foundation during the 2004-05 school year at issue in this appeal was the program as described and as characterized by respondent's social worker in 2003.  I note also that petitioners do not refer to this information to describe the environment or services at Family Foundation.  I therefore do not address this information further.