Application of a CHILD WITH A DISABILITY, by her parents, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the Wallkill Central School District
Family Advocates, Inc., attorney for petitioners, RosaLee Charpentier, Esq., of counsel
Anderson, Banks, Curran, and Donoghue, Esqs., attorneys for respondent, Lawrence W. Thomas, Esq., of counsel
Petitioners appeal from the decision of an impartial hearing officer which upheld a recommendation made by respondent's committee on special education (CSE) in January, 1992, that petitioners' child remain classified as emotionally disturbed and continue to be enrolled in one of respondent's special education classes, with some mainstreaming, in the Wallkill Middle School. At the time they requested the hearing, petitioners sought a determination that respondent should assume responsibility for the child's placement in a private residential school, where she had previous been placed by the Ulster County Social Services Department pursuant to an order of the Ulster County Family Court. Petitioners seek a determination that the placement recommended by the CSE was inappropriate, and an order requiring respondent to pay them for all costs which they have, or might, incur for their child's education in the private school. The appeal must be dismissed.
Petitioners' daughter is sixteen years old. She was born prematurely, and required oxygen at birth. The student had recurrent ear infections and allergies during early childhood. Between the ages of two and one-half to three and one-half years, the child gained a significant amount of weight. She reportedly weighed 90 pounds when she was three and one-half years old. The child was evaluated by a pediatric endocrinologist, who did not make a specific diagnosis, but who did prescribe a diet for her. The child continued to gain weight throughout elementary school. In a report of a screening conducted by the private school in February, 1992, the child was described as being five and one-half feet tall, and weighing 266 pounds.
In June, 1983, when she was being screened for entrance into kindergarten, the child was referred to the CSE. At that time, the child was reportedly hypertensive. A school psychologist, who evaluated the child in June, 1983, reported that the girl's performance on tests to measure her cognitive skills had been adversely affected by an allergy attack. While the girl achieved verbal, performance and full scale IQ scores in the average range, those scores were described as minimal by the school psychologist, who hypothesized that the child's intellectual potential was likely to be in the high average, or above, ranges. She described the child as somewhat immature, and having perceptual difficulties. When re-evaluated in 1989, the child achieved a verbal IQ score in the high average range and a performance IQ score in the low average range.
Petitioners' child was not classified as a result of her initial referral to the CSE. She attended regular education kindergarten during the 1983-84 school year. The following school year she was enrolled in a "pre-first grade" class. In June, 1986, the CSE recommended that the child, who was then in first grade, be classified as emotionally disturbed, and that she be enrolled in a special education class with a 12:1+1 child to adult ratio for the 1986-87 school year. In November, 1986, when the child was in the second grade, the CSE recommended that the child receive counseling. However, she was not provided with counseling by respondent in the third, fourth, or fifth grades. The child remained in self-contained special education classes through the remainder of elementary school. The child achieved grade equivalent test scores of 5.6 in reading, and 3.5 in mathematics on standardized tests administered in May, 1990, as the child was completing the fifth grade. Her spelling skills were at the fourth grade level. The child's relationships with peers, self-concept, and adjustment to school and community were reported to be poor.
In 1989, while she was in the fourth grade, the child reportedly threatened to commit suicide. Respondent's staff informed petitioners, who had the child evaluated by a private psychiatrist. At the hearing in this proceeding, the child's mother testified that the psychiatrist opined that the child had been seeking to attract attention, rather than actually contemplating suicide. Thereafter, petitioners had the child receive counseling from a social worker for approximately one and one-half years.
In September, 1990, the child entered the sixth grade in respondent's middle school. Respondent's special education program in the middle school is departmentalized, i.e., instruction in various subjects is provided by more than one special education teacher. At the hearing in this proceeding, one of respondent's former CSE chairpersons testified that the child was in special education classes for her academic subjects, but was mainstreamed for special subjects such as art, music, home and careers, and lunch. Her individualized education program (IEP) for the 1990-91 school year did not indicate that the child was to be mainstreamed for those subjects (cf. 8 NYCRR 200.4 [c])[iv]). The child was absent from school on 43 of the 180 school days during the 1990-91 school year. The child reportedly passed all of her regular and special education subjects during the sixth grade. On standardized tests administered in May, 1991, the child achieved grade equivalent scores of 5.7 in reading and 4.8 in mathematics. She continued to be at the fourth grade level in spelling.
On March 1, 1991, the child was seen by a physician affiliated with the Winthrop University Hospital in Mineola, New York, because of her obesity and hypertension. The physician diagnosed the child as having Prater-Willi Syndrome (PWS), a genetic disorder which is typically manifested by an insatiable appetite, obesity, short stature, hypogonadism (retardation of growth and sexual development), and mental retardation. The physician prescribed medication to increase her metabolism, placed the child on a diet, and recommended that she exercise more. The physician subsequently prescribed medication to suppress the child's appetite.
On April 10, 1991, the CSE met to conduct its annual review of the child. Petitioners were accompanied to the CSE, meeting by an employee of the Ulster Developmental Disabilities Services Offices of the Wassaic Developmental Center (Ulster DDSO), who discussed the child's medical diagnosis of PWS with the CSE and reportedly recommended that the child be placed in a private residential school. The child's primary special education teacher for the sixth grade recommended that the child remain in respondent's middle school for the seventh grade. The CSE recommended that the child continue to be enrolled in the special education program in the middle school during the 1991-92 school year. Once again, the child's IEP did not indicate that the child was to be mainstreamed for any subject, although the record reveals that she was mainstreamed for seventh grade reading lab, physical education, and home and career courses. However, she was subsequently exempted from physical education for medical reasons. The child was enrolled in special education English, mathematics, social studies, science, and health courses, as well as a special education study hall in which socialization skills were practiced. Petitioners did not challenge the CSE's recommendation.
In September, 1991, the child was re-evaluated by a school psychologist, as part of the child's triennial evaluation. The child achieved a verbal IQ score of 91, a performance IQ score of 111, and a full scale IQ score of 100. With the exception of the subtest which measured the child's vocabulary skills, her verbal subtest scores were all close to average. The vocabulary subtest score was slightly below average. The child's visual motor skills were consistently in the high average range, except for one timed visual motor task. On an alternate test, the child exhibited a three year deficit in visual motor skills. Her performance was described as impulsive and immature, with emotional indicators. The school psychologist described the child as lonely and unhappy, and one who sought adult approval and company. Her self-esteem and self-concept were reported to be low. The school psychologist also reported that the child appeared to set herself up to be teased by her peers, until she lost her temper.
At this hearing in this proceeding, the child's mother testified that the child's truancy increased, as did her temper tantrums at home, during the 1991-92 school year. The child's report card reveals that as of December 27, 1991, the child had been absent from school for 30 days, 21 of which absences were deemed to be "illegal". In October, 1991, petitioners sought assistance from a social worker through the auspices of the Ulster DDSO. The social worker helped petitioners to file a Person in Need of Supervision (PINS) petition, pursuant to Article 7 of the Family Court Act, in the Ulster County Family Court. In a petition which was dated November 4, 1991, petitioners alleged that the child had refused to attend school; that she had been physically violent toward her mother; and that she had been verbally abusive toward her father. They further alleged that the child had threatened to commit suicide and to run away.
The first marking period for the 1991-92 school year ended on November 8, 1991. The child received satisfactory, or better, grades in special education, health, social studies, science and study hall. She also received satisfactory grades in her regular education home and careers and reading lab courses. The child received failing grades in special education mathematics and English. The child's mathematics teacher for the first marking period testified at the hearing that the child had the ability to do her work, but her academic performance had been harmed by her poor attendance. The teacher described the child as highly motivated, and well behaved in class. The child's special education English teacher, who also taught the child in a special education study hall and became her mathematics teacher for the second marking period, testified that the child worked well when she attended school. She further testified that the child's academic performance in English was sufficiently strong to warrant consideration for placing her in a regular education eighth grade English class during the 1992-93 school year. The teacher explained that the child had received a failing grade in English because the child had not completed the work which she missed when she was absent.
While their PINS petition was pending in the Family Court, petitioners asked to meet with the CSE. On January 8, 1992 the CSE reviewed the child's educational program, and discussed petitioners' request for residential placement for their daughter. The minutes of the CSE meeting revealed that although the CSE agreed to support petitioners' PINS petition, it declined to recommend that the child's educational program be changed, because the CSE believed that the child's educational needs were being met.
The second marking period of the 1991-92 school year ended on January 24, 1992. The child received satisfactory grades in special education social studies, science, health and study hall, and in regular education home and careers and reading lab. Teacher comments for English, mathematics, and science indicated that the child had received low grades because of her poor attendance.
In February, 1992, the child was placed in a group home by employees of the Ulster DDSO. She continued to attend respondent's middle school. In an order dated March 6, 1992, an Ulster County Judge found that petitioner's daughter was in need of supervision because of her failure to attend school and her habitual disobedience to her parents. The Court placed the child for one year in the custody of the Ulster County Commissioner of Social Services for placement of the child in the Devereux School, a private school for children with disabilities. The child entered the Devereux School at the end of March 1992.
By letter to the CSE chairperson dated April 22, 1992, petitioner's attorney asked that an impartial hearing be held to review the CSE's recommendation of January 8, 1992 for the child to remain in her day program in respondent's middle school, rather than a residential program as petitioners had requested. Respondent reportedly refused to hold a hearing, because petitioners no longer had custody of the child. Petitioners appealed from respondent's refusal or failure to hold a hearing to the Commissioner of Education. On November 24, 1992, the Commissioner dismissed the appeal on the ground that petitioners had no legal right to obtain reimbursement for a placement which had been ordered by the Family Court (Appeal of a Child with a Handicapping Condition, 32 Ed. Dept. Rep. 306). Petitioners applied to the Commissioner for a reopening of his decision. On January 11, 1994, the Commissioner reopened his decision on the ground that the parties had misapprehended the decision (Application of a Child with a Handicapping Condition, 33 Ed. Dept. Rep. 403). While reiterating that petitioners could not use the impartial hearing process to obtain reimbursement for the cost of a court ordered placement, the Commissioner held that petitioners were entitled to a hearing to establish whether the program recommended by the CSE was appropriate, and if not, whether the program of the Devereux School was appropriate. He directed respondent to schedule a hearing within 10 ten days.
The hearing in this proceeding began on March 17, 1994, and concluded on August 4, 1994. Although the hearing officer's decision was undated, the record reveals that respondent did not receive the decision until March 24, 1995.1 The hearing officer found the child was appropriately classified as emotionally disturbed, rather than as other health impaired, the classification which petitioners had previously sought. She further found that the program recommended by the CSE was appropriate because the child was progressing academically, despite her absenteeism, and because respondent's staff was addressing the child's social and emotional needs. The hearing officer also found that the child's placement in respondent's middle school was the least restrictive environment for the child. Finally, the hearing officer found that the child's placement in the Devereux School was inappropriate because the needs of the other children there were dissimilar to this child's needs, and because it was not the least restrictive environment for her.
Before reaching the merits of the appeal, I must address two procedure issues. The first relates to the scope of this proceeding. In their respective memoranda of law, petitioners allege that the CSE recommended, in October, 1994, that the child be placed in the Devereux School, while respondent denies that allegation. That recommendation, whatever it was, is not part of this proceeding which is limited to the appropriateness of the CSE's recommendation in January, 1992. The appropriateness of the Devereux School for any period of time after the 1991-92 school year is not within the scope of this proceeding.
Respondent asserts that the matter is moot because the school year in question has ended, and there is no meaningful relief which petitioners could obtain in this proceeding. In his decision to reopen petitioners' appeal, the Commissioner of Education recognized that the CSE recommendation which petitioners sought to challenge was two years old, but held that petitioners were entitled to a hearing to challenge the CSE's recommendation, and noted that petitioners should not be penalized for the delay in obtaining a hearing. Respondent did not seek judicial review of the Commissioner's decision, which is therefore binding upon respondent. Although disputes about IEPs may become moot when the IEPs are superseded by subsequent IEPs (Robbinsv. Maine School Admin. Dist. No. 56, 807 F. Supp. 11 [D. Me., 1992]), there is no mutually subsequent agreed upon IEP in this case, and there is a continuing disagreement between the parties about the nature of the child's placement. Therefore, I find that respondent's assertion is without merit (Application of a Child with a Disability, Appeal No. 93-35). However, my finding that this matter is not moot should not be construed as having been based upon petitioners' claim that they have been, or may be, asked by the Ulster County Department of Social Services to pay for all or part of the child's tuition at the Devereux School. Financial responsibility for tuition remains with the local social services department (Section 4404 [a] of the Education Law).
Petitioners have not explicitly requested that I annul the hearing officer's decision with respect to the appropriateness of the child's classification as emotionally disturbed. Absent a challenge to the hearing officer's determination about the child's classification, her determination may not be set aside (Hiller v. Bd. of Ed. Brunswick CSD et al., 674 F. Supp. 73 [N.D.N.Y., 1978]). In any event, I would not be inclined to alter the child's classification. Although there are numerous references to the child's Prater-Willi Syndrome in the record, it is not necessary to determine whether the child in fact has that medical condition to select an appropriate educational classification for her. A private psychologist who independently evaluated the child in 1994 testified that the child's medical diagnosis was irrelevant, and that the relevant inquiry was what factors actually affected the child's learning. The factors which he identified were directly related to her emotional condition. In addition, there is no dispute that the child has had difficulty maintaining satisfactory interpersonal relationships with her peers, over a long period of time (see 8 NYCRR 200.1 [mm]).
Petitioners assert that respondent failed to provide an appropriate education program for the child during the 1991-92 school year. The board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (Matter of Handicapped Child, 22 Ed. Dept. Rep. 487; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Child with a Disability, Appeal No. 93-9). To meet its burden, the board of education must show that the recommended program is reasonably calculated to allow the child to receive educational benefits (Bd. of Ed. Hendrick Hudson CSE v. Rowley, 458 U.S. 176 ), and that the recommended program is the least restrictive environment for the child (34 CFR 300.550 [b]; 8 NYCRR 200.6[a]). An appropriate program begins with an IEP which accurately reflects the results of the evaluation to identify the child's needs, provides for the use of appropriate special education services to address the child's special education needs, and establishes annual goals and short-term instructional objectives which are related to the child's educational deficits (Application of a Child with a Disability, Appeal No. 93-9; Application of a Child with a Disability, Appeal No. 93-12).
Petitioners contend that the CSE relied upon inadequate or out-of-date evaluative information in making its recommendation of January 8, 1991, which adhered to its prior recommendation for the 1991-92 school year. They assert that the CSE relied upon a seven- year old social history, a six-year old classroom observation, and a four-year old physical examination of the child. They further assert that respondent did not obtain a psychological evaluation until several weeks after the CSE meeting.
The record reveals that the psychological evaluation to which petitioners refer was in fact performed on September 16, 1991, approximately four months before the CSE meeting. State regulation requires that a CSE must arrange for an appropriate examination for each child with a disability at least every three years by a physician, a school psychologist, and, if deemed necessary by other qualified appropriate professionals (8 NYCRR 200.4 [e]). There is no requirement that a new or revised social history be obtained, or that a new classroom observation be made. It must be noted that the school psychologist who evaluated the child in September, 1991 testified at the hearing in this proceeding that she observed the child in her special education classroom.
The child's cumulative health record discloses that the child was examined by a physician on November 28, 1988. The child's weight was thereafter monitored and recorded in February and March, 1989. The record also includes a brief note dated November 25, 1991, from the child's private physician, indicating that the child had been diagnosed as having Prater-Willi Syndrome. Although respondent should have performed its own physical examination, or obtained the results of a physical examination by the child's physician, to complete its triennial evaluation of the child in time for her next annual review by the CSE, I note that the CSE did have the results of a physical examination within the last three years when it originally recommended in April, 1991 that the child attend respondent's middle school for the 1991-92 school year. At the April, 1991 CSE meeting, the child's reported diagnosis of Prater-Willi Syndrome had been discussed with regard to her educational needs. Upon the record before me, I find that the facts do not afford an adequate basis for concluding that the CSE lacked sufficient evaluative information about the child when it met on January 8, 1992.
Each child's IEP must adequately describe the child's present levels of educational performance (34 CFR 300.346 [a]). Petitioners assert that their child's IEP (Exhibit X), did not sufficiently describe her current functioning levels. I find that their assertion is untenable. The child's IEP reported the results of standardized tests administered to the child in May, 1991 with regard to her reading decoding and comprehension skills, and her mathematical computation and concept skills. In addition to her tests results, which were reported in grade equivalents, the IEP also included brief descriptions of the activities which the child was working in reading, spelling, and writing. At the hearing in this proceeding, the CSE chairperson acknowledged that the child's IEP should also have included the results of standardized tests administered to the child in September, 1991. She also acknowledged that the IEP set forth the results of the IQ test administered to the child in May, 1989, rather than the IQ test administered to the child in September, 1991. However, the CSE chairperson testified that the results of the September, 1991 IQ test and standardized tests were discussed with petitioners at the January 8, 1992 CSE meeting. Her testimony was not refuted at the hearing.
In their memorandum of law, petitioners assert that the child's IEP was defective because it did not specify the projected date for the initiation of special education services (cf 8 NYCRR 200.4 [c][vi]). The IEP, which provided for the continuation of the child's existing program for the 1991-92 school year, indicated that the projected service date was September 1, 1991. I find petitioners' assertion to be without merit. They also assert that the IEP is flawed by the CSE's failure to set forth objective criteria, or evaluation procedures, to ascertain the child's progress towards achieving her instructional objectives. However, I find that the IEP did include objective criteria for measuring the child's progress. Federal regulation requires that a child's IEP shall include appropriate objective criteria and evaluation procedures, as well as schedules for determining, on at least an annual basis, whether the child's short-term instructional objectives are being achieved (34 CFR 300.346[a]). This IEP was to be in effect until the CSE conducted its annual review no later than June 1, 1992. At its annual review, the CSE was to assess the child's progress during the 1991-92 school year, through the reports of her teachers and the child's report card and other academic records. Although respondent should take care in the future to more clearly set forth schedules for ascertaining the child's progress in her IEP, there is no basis for invalidating the child's 1991-92 IEP because her evaluation schedules were not set forth.
Petitioners challenge the child's IEP annual goals and short-term instructional objectives on the ground that they are too broad, and that they are inappropriate in view of the child's educational achievement and learning rate. IEP annual goals should be sufficiently specific to provide direction to a child's teachers about the CSE's expectations (Application of a Child with a Disability, Appeal No. 93-24). Although the annual goals in this child's IEP are fairly broad, I find that the short-term instructional objectives are sufficiently specific to afford a basis for the child's teachers to draft instructional plans for her (Application of a Child with a Disability, Appeal No. 93-48; Application of a Child with a Disability, Appeal No. 95-15). The child's goals and short-term objectives reflect the child's ability to understand the seventh grade curriculum, but provide for the remediation of her language arts and mathematics skills. I find that the IEP goals and objectives are appropriate.
Petitioners also challenge the child's IEP on the ground that it did not address the child's behavioral, social and emotional needs. The IEP indicated that the child did not get along well with most children, and had poor self-concept. It included an annual goal for the child to improve her self-concept. Although not referred to in the child's IEP, respondent's special education study hall was designed to assist her in developing appropriate social skills with her peers. The child's special education teacher for English testified that the child also participated in a cooperative learning program in English, which was intended to enhance her interpersonal skills. The record reveals that the child also received help from a school psychologist and a guidance counselor in meeting her social and emotional needs, although neither individual's services were included on the IEP.
At the heart of this dispute between the parents and the school district are the radically different perceptions which they have of her performance in school and of the district's responsibilities. Petitioners, and the witnesses who testified on their behalf, offered little information about the child's education performance. Instead, they testified about a child who had become increasingly unruly at home with temper tantrums and allegedly compulsive eating behavior. The school district representatives who testified at the hearing uniformly described the child as pleasant and cooperative while in school. None of respondent's witnesses observed any compulsive behavior, including eating, by the child. Her academic performance was found to be commensurate with her cognitive abilities and the existence of an emotional disturbance. Although the child failed English and mathematics during the first two marking periods, it does not follow that respondent had failed to provide her with an appropriate program. Her special education teacher testified that the child could do the work, but had to learn that there were negative consequences for not doing all of her work. She further testified that although the child's social skills were her weakest area, those skills were addressed in the child's program in the middle school.
At the hearing, petitioners asserted that their child required a residential placement. A private psychologist, who evaluated the child in April, 1994, opined that the child had made substantial progress in the level of her adaptive functioning, emotional stability, and social functioning during the two years that she had attended the Devereux School. However, he conceded on cross-examination that he did not have sufficient information to opine what would have been an appropriate placement for the child in the 1991-92 school year. Under Federal and State law, a residential placement is appropriate only if such placement is required for the child to benefit from his or her educational program, i.e., to make educational progress (Abramson v. Hershman, 701 F. 2d 223 [1st Cir., 1983]; Burke County Bd. of Ed. v. Denton, 895 F. 2d 973 [4th Cir., 1990]; Kerkam v. Superintendent D.C. Public Schools, 931 F. 2d 84 [D.C. Cir., 1991]; Applications of Bd. of Ed. Hoosic Valley CSD and a Child with a Handicapping Condition, 30 Ed. Dept. Rep. 129). A review of this child's standardized test scores and her IEPs in the record reveals that she has made educational progress while in a day placement. Although the child and her parents were in conflict at the time of the January 8, 1992 CSE meeting, it is well settled that unpleasantness at home does not afford an educational basis for a residential placement (Application of a Child with a Handicapping Condition, 27 Ed. Dept. Rep. 131; Application of a Child Suspected of Having a Handicapping Condition, Appeal No. 91-6; Application of a Child with a Handicapping Condition, Appeal No. 91-28). I have also considered petitioners' claim that the child required a residential program in an environment in which her access to food could be controlled as a means of addressing the effects of her Prater-Willi Syndrome. However, the treatment of a medical condition is not per se respondent's responsibility under either Federal or State law (Clovis Unified School District v. California Office of Administrative Hearings et al., 903 F. 2d 635 [9th Cir., 1990]; Detsel by Detselv. Board of Education Auburn Enlarged School, 637 F. Supp. 1022 [N.D.N.Y., 1986], aff'd. 820 F. 2d 587 [2d Cir., 1987]; cert. den. 484 U.S. 981 ). In this instance, the child's educational program in respondent's middle school addressed her educational and social needs. Therefore, I find that respondent has met its burden of demonstrating that it had offered the child an appropriate educational program for the 1991-92 school year.
THE APPEAL IS DISMISSED.