Application of a CHILD WITH A DISABILITY, by her parent, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the Elwood Union Free School District
Patricia Howlett, Esq., attorney for petitioner
Ehrlich, Frazer and Feldman, Esqs., attorneys for respondent, Florence T. Frazer, Esq., of counsel
Petitioner appeals from the decision of an impartial hearing officer which upheld the reported* recommendation of respondent's committee on special education (CSE) that petitioner's daughter be enrolled in the St. Anne's Institute in Albany, New York, for the 1995-96 school year. Petitioner asks that respondent be ordered to pay for the child's tuition, at the DeSisto School in Stockbridge, Massachusetts, in which petitioner and her husband had unilaterally enrolled their daughter. The appeal must be dismissed.
Petitioner's daughter is 16 years old. There is virtually no information in the record about the child's education, prior to her initial referral to respondent's CSE, in December, 1993. At the time of her referral on December 4, 1993, the child was 14 years old, and was enrolled in the ninth grade at respondent's John Glenn High School. The child was hospitalized at the Hillside Hospital in Glen Oaks, New York, from November 22, 1993 until December 28, 1993, after reportedly attempting to commit suicide by ingesting medicine. Prior to her alleged suicide attempt, the child had been receiving counseling from a social worker, who had referred the child to respondent's school psychologist. The child reportedly received counseling while in school, on an informal basis.
The child was evaluated by a psychologist employed by the Hillside Hospital, on December 10, 13 and 14, 1993. The psychologist reported that the child had achieved a verbal IQ score of 106, a performance IQ score of 99, and a full scale IQ score of 103. She exhibited relative weakness in the areas of general knowledge, ability to interpret social situations, and visual organization. On the Woodcock-Johnson Tests of Achievement, the child achieved grade equivalent scores of 5.2 in science, 7.5 in humanities, 7.9 in social studies, 12.0 in passage comprehension, and 16.9 in mathematical calculation. The psychologist reported that the child's thought processes were generally lucid, but somewhat strained on projective testing. With regard to the child's achievement test results, the psychologist suggested that the child was either not attending well in school, or having trouble remembering or retrieving what she had been taught. She described the child as emotionally constricted, and consistently feeling anger. The psychologist reported that the child was responding to internal stress and needs, which occasionally caused her to misinterpret or distort her interactions. She opined that the child did not perceive events or emotional stimuli in a standard way, and that the child's misreading of reality might lead her to behave inappropriately at times. She noted that the child's low self-esteem appeared to contribute to her social isolation, while her emotional unhappiness and pressure augmented her unwillingness or inability to accurately perceive events around her. The psychologist recommended that the child receive a more complete educational evaluation.
Upon the child's release from the hospital, the hospital staff reportedly recommended that the child be enrolled in a day treatment program (see 8 NYCRR 200.14), or a residential school. The child's parents enrolled her in the Harmony Heights School for Girls, a private residential school, after her release from the hospital. However, the child reportedly preferred to return to respondent's high school. On January 5, 1994, the CSE met with the child's parents, and conferred telephonically with staff of the Hillside Hospital, prior to initiating an evaluation of the child. An individual aide was reportedly assigned to monitor the child's transition from class to class in the John Glenn High School, as an interim measure when she returned to the high school.
On January 10, 1994, the child was evaluated by respondent's school psychologist, who noted that the child was being treated with an anti-depressant drug. He reported that the child had achieved scores on the 98th percentile on a 30-item self-assessment of symptoms associated with clinical depression, and a 30-item self-assessment of suicidal ideation. The school psychologist also administered the Millon Adolescent Personality Inventory (MAPI) to the child. He reported that the results of the MAPI suggested that the child had a chronic maladaptive coping style, known as borderline personality disorder. The school psychologist described individuals with this disorder as having extremely intense feelings, and experiencing rapid mood shifts. He indicated that the child's disorder was the most resistant to treatment, and that the primary goal of treatment was to reduce the frequency and intensity of suicidal gestures. While noting that the child had expressed her desire to return to the John Glenn High School, the school psychologist expressed concern about the child's readiness to return to the environment in which she had previously expressed suicidal ideations, and opined that her counseling needs were more extensive than those of other children who received counseling in the high school. He suggested that the child be considered for both counseling and resource room services.
The child also received an educational evaluation on January 10, 1995. The evaluator reported that the child achieved standard scores 118 in reading, 115 in basic writing, and 126 in mathematical reasoning. The evaluator reported that the child had an excellent sight vocabulary, and excellent word attack skills. Her reading comprehension skills were described as good, and mathematics was reported to be an area of strength for her. The evaluator reported that the child's written language skills were above average. While the child's transcript was not included in the record, a guidance counselor reported, on January 20, 1994, that the child was functioning well in all academic areas. The counselor further reported that the child had not manifested any behavioral problems in the school. The child's attitude in school was described as quiet and non-confrontational.
In a social history which was prepared with petitioner's assistance on January 11, 1994, the child was described as having been delayed in achieving all of her developmental milestones. Her parents had reportedly consulted a psychiatrist because of the child's enuresis. She was described in the social history as having experienced difficulty socializing with peers, since the age of seven. Petitioner reported that the child had a low frustration threshold, and outbursts of temper at home.
On January 24, 1994, the CSE recommended that the child be classified as emotionally disturbed, and that she receive five periods per week of resource room services, and one period per week of counseling. The CSE also agreed that the child should continue to have the services of an individual aide. Petitioner reportedly agreed to visit the site of a BOCES day treatment program, in the event that the child's resource room program proved to be inappropriate. The CSE reconvened on February 24, 1994. The child had reportedly objected to having an aide, and had allegedly refused to attend her resource room class. It was agreed at the CSE meeting to reduce the amount of the aide's services, and to revise the nature of the child's resource room services.
In March, 1994, the child was sent to the University Hospital in Stony Brook, New York, for a psychiatric evaluation, after she had reportedly threatened to commit suicide, in a letter which she sent to a friend. Shortly thereafter, the child was placed by her parents in the Kidspeace Program, a private program which is located in Pennsylvania. She remained in the Kidspeace Program for the remainder of the 1993-94 school year.
In September, 1994, the child returned to the John Glenn High School. She was enrolled in Regents level academic courses, and in respondent's resource room program. At the hearing in this proceeding, petitioner testified that the child was unhappy with her resource room class, and began cutting that class. On November 16, 1994, the CSE met to review the child's progress. The resource room teacher reported that the child was not cooperating with her. Petitioner asked that the child's resource room program be terminated. The CSE agreed to terminate resource room services, and to provide the child with transitional support services. It also agreed to terminate the child's counseling. The CSE reconvened on January 3, 1995, and recommended that the child continue to receive transitional support services.
Petitioner testified that the child's behavior at home deteriorated, in February, 1995. The child was reportedly involved with drugs and alcohol, and acted out. She ran away from home, but was located by the police, who returned her to her parents. The child reportedly attended school for one day, and then ran away again. She was again found by the police, and returned to her parents. They placed her in the Mather Memorial Hospital in Port Jefferson, New York, where she was treated for a possible bipolar disorder. The child entered the hospital on February 28, 1995. On March 1, 1995, petitioner met with the CSE. Petitioner requested that the child be placed in a residential school. She was reportedly advised by the CSE that the possibility of a placement in a day treatment program would have to be explored, before the CSE could consider recommending a residential placement for the child.
On March 11, 1995, petitioner visited the DeSisto School. The following day, she placed the child in that private school. Thereafter, she advised the CSE chairperson of her unilateral placement of he child in the private school. Petitioner did not attend a CSE meeting which was held on March 23, 1995. The CSE reportedly took no action at that meeting. The CSE chairperson testified that the CSE was delayed in pursuing a possible day treatment placement in the New York Avenue School of the Board of Cooperative Educational Services of the Third Supervisory District of Suffolk County, because it needed to obtain petitioner's consent to the release of the child's records. An application to the New York Avenue School was made in May, 1995. On June 2, 1995, the CSE was informed by the New York Avenue School that its screening committee had concluded that the child required more extensive services than could provided in a day treatment program, and recommended a residential placement for her.
On June 12, 1995, the CSE met with petitioner. It prepared the child's IEP for the 1995-96 school year. The CSE recommended that the child remain classified as emotionally disturbed, and that she be educated in classes with a 6:1+1 child to adult ratio in a residential school, on a twelve-month basis. The IEP did not identify a specific school for the child. The IEP indicated that the child did not have any academic deficits, but had severe problems relating appropriately to adults and peers, and required intensive supervision in order to function in an educational setting. Notwithstanding its description of the child's strong academic skills, the IEP included annual goals for the improvement of the child's reading and writing skills, as well as for her performance in academic subjects. Although the IEP did not expressly provide that the child would receive counseling as a related service, it nevertheless included an annual goal for counseling.
After the CSE meeting, respondent applied to the Residential Placement Unit (RPU) of the State Education Department for assistance in locating an appropriate residential placement for the child. The RPU provided respondent with a list of eight private schools in New York State which might have appropriate programs for the child. Respondent applied to all eight schools. At the hearing in this proceeding, the CSE chairperson testified that two schools indicated that they could not admit the child, and the remaining six schools expressed interest in interviewing the child, who remained in the DeSisto School. One of the six schools sent a representative to the DeSisto School to interview the child, and thereafter accepted her for admission. However, petitioner was reportedly opposed to the child's enrollment in that private school because she believed that it would not provide sufficient structure to prevent the child from running away, and it reportedly did not offer a Regents high school diploma program. On July 17, 1995, the CSE chairperson visited the St. Anne's Institute in Albany, New York, which was one of the schools on the RPU's list of schools.
On August 29, 1995, the CSE met with petitioner to discuss the child's placement in the St. Anne's Institute, which still required an interview with the child before accepting her for enrollment. During the CSE meeting, the CSE chairperson contacted the St. Anne's Institute, which agreed to have respondent's staff interview the child at the DeSisto School, on behalf of the St. Anne's Institute. On September 15, 1995, the CSE chairperson and respondent's school psychologist went to the DeSisto School. The school psychologist interviewed the child, and administered two tests to her. At the hearing in this proceeding, the school psychologist testified that she had been asked by the St. Anne's Institute to ascertain whether the child was so committed to the DeSisto School that she could not successfully transition to the St. Anne's Institute, and what, if anything, St. Anne's Institute could do to assist the child in making the transition. She further testified that the child had not exhibited any compelling need to remain in the DeSisto School, and had told the school psychologist that she had few friends in that school. The school psychologist administered the Millon Adolescent Clinical Inventory (MACI) to the child. The child's responses to the questions on the MACI were scored and interpreted by the test maker. In part, the child was described in the MACI report as follows:
" The emotions of this troubled young woman are characterized by her intense and variable moods, by a restless nervousness, periods of dejection and self-deprecation, as well as episodes of isolation and anger. A longstanding expectancy that others will be rejecting or disparaging precipitates disillusionment one time, and impulsive negativism another. Vacillation is exhibited between desires for affection, fear of rejection, and a general numbness of feeling. Despite her longing for warmth from family and acceptance by peers, she painfully withdraws to maintain a safe distance from close psychological involvements ... She lacks a clear idea of her identity and seems to be unfocused regarding where she is going and what is important to her ... Somewhat demoralized and dismayed, she may already be entrenched in both the beliefs and habit systems that will make future academic success unlikely."
At the hearing, respondent's school psychologist testified that she agreed with the findings in the MACI report, including its finding that the child would need pharmacological intervention and psychotherapy. She also testified that a MAPI test which she administered to the child revealed the child to be oppositional and wanting to be in control, yet having very strong ties to her family. She opined that the child's psychotherapy was likely to be long and involved, and that the child required a psychotherapeutic residential placement. The school psychologist further opined that placement in the St. Anne's Institute would be appropriate for the child.
After being informed that the CSE had recommended that the child be placed in the St. Anne's Institute for the 1995-96 school year, petitioner requested an impartial hearing to review the CSE's recommendation. The hearing was held on October 31, 1995. At the hearing, petitioner's attorney stipulated that petitioner was not challenging the actions which the CSE had taken during the 1993-94 and 1994-95 school years, and that there was no dispute regarding the appropriateness of the child's classification as emotionally disturbed, or her need for a residential placement. The sole issue to be determined was whether the St. Anne's Institute would be an appropriate placement for the child.
In his decision, which was rendered on November 21, 1995, the hearing officer found that the St. Anne's Institute would be appropriate placement for the child. His finding was based upon the testimony of the CSE chairperson, who described the St. Anne's Institute program, and the testimony of respondent's school psychologist regarding the child's needs. While noting that petitioner had expressed the concern that the St. Anne's Institute provided less supervision than did the DeSisto School, the hearing officer found that there was no basis in fact for petitioner's concern.
Since both parties agree that the child should be classified as emotionally disturbed and be educated in a residential school, and the hearing officer has concurred, I am precluded from reaching either issue (Hiller v. Bd. of Ed. Brunswick CSD et al., 674 F. Supp. 73 [N.D. N.Y., 1987]). Although there is no doubt that the child has significant emotional difficulties, the focus of this proceeding must remain upon the impact which the child's emotional difficulties have upon her ability to benefit from instruction, and her need for special education and related services (34 CFR 300.7 [a]).
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 CSD 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 evaluations 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).
Petitioner challenges the hearing officer's decision on the grounds that respondent had allegedly failed to adequately evaluate her daughter in all areas relating to her disability, and that the St. Anne's Institute does not require family participation in its therapeutic program and fails to provide the strictly supervised environment which the child requires. Notwithstanding her attorney's stipulation at the hearing that petitioner did not challenge the actions taken by the CSE regarding the child's educational program and placement for the 1993-94 and 1994-95 school years, petitioner asserts that the CSE failed to act in a timely manner with regard to the child's placement for the 1995-96 school year.
Federal and State regulations require that a child receive a full evaluation, prior to initial placement in a program providing special education and related services (34 CFR 300.531; 8 NYCRR 200.4 [b]). State regulation requires that each child's individual evaluation include a physical examination, individual psychological examination, a social history, and other appropriate assessments and evaluations. Federal regulation, while not specifying the components of an evaluation, requires that each child be assessed in all areas relating to the child's disability (34 CFR 300.532 [f]). The record indicates that respondent's CSE obtained the results of all the examinations and reports required by State regulation. Petitioner asserts that the tests and procedures which the CSE used did not comply with the Federal and State requirement that assessment procedures include those tailored to assess specific areas of educational need, and not merely those which are designed to provide a general intelligence quotient (34 CFR 300.532 [b]; 8 NYCRR 200.4 [b][ii]). I find that there is no merit to petitioner's contention. The Federal regulations implementing Section 504 of the Rehabilitation Act of 1973 require that a child be evaluated before there is any significant change in the child's placement (34 CFR 104.35 [a]). I find that the additional testing which respondent's school psychologist performed on September 15, 1995 was sufficient to meet the Section 504 requirement, and that respondent has demonstrated that it has adequately evaluated the child.
The record reveals that petitioner's daughter requires a placement which can provide Regents level academic instruction in small instructional groups, a highly structured setting, and individual and group counseling. The CSE chairperson and respondent's school psychologist testified about the St. Anne's Institute and its program. The St. Anne's Institute serves approximately 125 girls between the ages of 12 and 18. The girls, who typically have troubled relationships at home or with their peers, receive departmentalized instruction in various levels, including Regents level courses. The St. Anne's Institute can provide instruction in 6:1+1 classes, as is required by the child's IEP. The buildings in which its students are housed are locked. Students live in two-person rooms, with both students being enrolled in the same instructional program. Each housing unit has up to 21 children, with 7 adults. At the hearing, there was some colloquy about the St. Anne's Institute's alleged policy of sending children home for the holidays on buses, without any supervision. However, I must note that no evidence of the alleged policy was introduced at the hearing. A representative of the DeSisto School expressed some concern about the frequency of the counseling which is provided to students in the St. Anne's Institute. Respondent's school psychologist testified that children in the St. Anne's Institute "regular" units (to one of which petitioner's daughter would have been assigned) received a minimum of group counseling once per week and individual counseling once per week. She also testified that additional counseling would be provided, if the child required it.
In this appeal, petitioner contends that the St. Anne's Institute could not provide an appropriate program because it does not require parental counseling (as does the DeSisto School). The issue was not raised at the hearing in this proceeding. However, it should be noted that State regulation requires that provision be made for parental counseling or education for the purpose of enabling parents of children in 6:1+1 classes to perform appropriate follow-up intervention activities at home (8 NYCRR 200.6 [g]). Although parental counseling at the St. Anne's Institute was not discussed at the hearing, nor was it indicated on the child's IEP, it does not follow that it would not be provided to the child's parents. The record before me does not afford a factual basis for finding that the child's educational program would be inadequate without more parental counseling (see 34 CFR 300.16 [b]) than would be provided pursuant to the State regulatory requirement.
With regard to petitioner's claim that respondent failed to make a timely offer of a placement to her child, I must note that her claim is premised upon her assertion that respondent's resource room program was inappropriate during the 1994-95 school year, and that respondent should have provided another program to meet the child's mental health needs. However, her attorney stipulated at the hearing that petitioner was not challenging the appropriateness of the educational program offered by respondent during that school year. While not minimizing petitioner's concern for her child's health and safety following her hospitalization in February, 1995, I must point out that there is no evidence in the record of a significant change in the child's educational needs at that point in time. Once the CSE became aware of the child's need for another educational placement, it proceeded in accordance with the provisions of 8 NYCRR 200.6 (i) and Federal and State requirements to identify the least restrictive environment for the child.
I have considered petitioner's other contentions, and find that they are without merit.
THE APPEAL IS DISMISSED.
* A CSE makes its recommendation in the form of an individualized education program (IEP) (8 NYCRR 200.4 [c]). Although both parties agree that the CSE recommended that the child attend the St. Anne's Institute, the record does not include an IEP which designates that facility as the recommended placement.