99-073

       Petitioners appeal from an impartial hearing officer’s decision which denied their request for tuition reimbursement for the cost of their son’s tuition at the Family Foundation School (Family School) for the 1998-1999 academic school year. The hearing officer upheld the recommendation by respondent's committee on special education (CSE) that the boy not be classified as a child with a disability. The appeal must be sustained.

        At the outset, I note that petitioners’ attorney has submitted an affirmation in which he alludes to new evaluations of petitioners’ son that were performed after the hearing officer had rendered his decision. The attorney has annexed a copy of an individualized education program (IEP) which was prepared for the boy by the CSE on January 11, 2000. The CSE recommended that the boy be classified as emotionally disturbed, and that he receive 30 minutes per week of counseling in a group of no more that eight students. The IEP does not, as the attorney appears to argue, include a recommendation for a full-time special education placement. The Board of Education opposes my consideration of the attorney’s affirmation and the documents attached to it. The Board of Education asserts that the affirmation was not part of the record before the hearing officer, and that it is not needed in order to have a complete record in this appeal. Documentary evidence not presented at a hearing may be considered in an appeal from a hearing officer’s decision, if such evidence was unavailable at the time of the hearing, or the record would be incomplete without it (Application of a Child with a Disability, Appeal No. 95-41). The new IEP was unavailable at the time of the hearing. I will accept it for the purposes of this appeal, while considering respondent’s argument that the IEP for the 1999-2000 school year is not relevant in determining the boy’s educational needs during the 1998-99 school year.

        Petitioners' son was 16 years old when the hearing began. The boy attended respondent's Stuyvesant High School during the 1996-97 school year. His academic record there was reported to be excellent by the Board of Education. During the 1997-1998 school year, the student began to cut classes at the Stuyvesant High School, and his grades declined (Exhibit 9). On March 10, 1998, he transferred to respondent’s E.R.Murrow School, which he attended for only three days. Petitioners had their son evaluated at the Holliswood Hospital in April, 1998. A hospital social worker described the boy as depressed and an at-risk adolescent (Exhibit 13). On June 9, 1998, petitioners requested that their son be evaluated by the CSE. A social history was obtained from them on June 13, 1998. The boy’s physician reported that the boy did not have any medical problem (Exhibit 3). The CSE could not complete its evaluation because the boy had reportedly run away from home and was unavailable for testing. It subsequently closed the boy’s case (Transcript, page 10).

        In September 1998, the student began attending the City-As-School, an alternative high school. His attendance was sporadic (Exhibit 6). In November, 1998, the student was placed by his parents at the Family Foundation School in Hancock, New York. The Family Foundation School has not been approved by the State Education Department to provide instruction to children with disabilities. On November 5, 1998, the boy’s father asked the CSE to reopen its evaluation (Exhibit 18). A social history was prepared on December 9, 1998 (Exhibit 1).

        A psychological evaluation was administered to the boy at the Family Foundation School on February 3, 1999, February 22, 1999 and March 8, 1999 by Ms. Laura Olexa, a consulting school psychologist for the school. She reported that the boy had achieved a verbal IQ score of 131, a performance IQ score of 117, and a full scale IQ score of 127. Ms. Olexa indicated that the boy’s processing speed was a relative weakness for him, but it was in the average range. The boy’s visual motor, short-term memory and visual organization skills were satisfactory. On the Wechsler Individual Achievement Test, petitioners’ son achieved standard scores of 118 for reading, 119 for mathematics, and 107 for writing. Those scores showed a good correlation between his expected and actual achievement. Ms. Olexa opined that the boy did not demonstrate any learning disability. She also reported on the boy’s social and emotional development. She described him as feeling sad, lonely, and guilty. Ms. Olexa indicated that the boy also appeared to have suppressed feelings of hostility and aggression, as well as feelings of inadequacy. Ms. Olexa further characterized the student as a sad, lonely adolescent, although she noted that his responses on the Children’s Depression Inventory were all within the normal range. She found the student demonstrated issues of self-esteem relating to overall feelings of happiness and satisfaction, and he experienced feelings of disappointment with regard to his family, who had high expectations of him. The student revealed a need to be nurtured and cared for. She opined that the boy would benefit from a supportive, structured environment, individual counseling, academic challenges, and participation in activities that would enhance his self-esteem and feelings of worth (Exhibit 2).

        At the hearing in this proceeding, Ms. Olexa’s report was reviewed by Dr. Steven Fried, a CSE psychologist. Dr. Fried testified that the CSE’s decision not to classify this boy was appropriate, based upon Ms. Olexa’s report. Dr. Fried was asked about the results of a psychiatric evaluation performed by Dr. Ivan Fras (Exhibit 14). In his report which was dated February 16, 1999, Dr. Fras indicated that the boy had suffered from severe polysubstance abuse, with several relapses including relapse into cocaine use after placement in a drug rehabilitation program. In an addendum prepared on April 16, 1999, Dr. Fras noted that the boy had attempted to commit suicide, and that recent "dissociative episodes" prevented the boy from leaving his placement at the Family Foundation School. Dr. Fras diagnosed the boy as having an impulse control disorder, a dysthymic disorder, an anxiety disorder, and polysubstance abuse. Dr. Fried acknowledged that persons with superior cognitive skills like petitioners’ son could be emotionally disturbed, and that substance abuse is often associated with emotional disturbance, but he noted that the definition of emotionally disturbed for educational purposes differed from the medical definition of that condition.

        Ms. Deborah Soloman, a CSE educational evaluator, testified that the results of an educational evaluation conducted on February 22, 1999 indicated this student was an intelligent young man whose basic reading percentile, mathematics reasoning and reading comprehension scores were in the superior range, and that his written expression was in the average range. She noted that the boy had gained admission to the Stuyvesant High School by his performance on a competitive examination, and he had maintained a 90 average with good attendance during his first year at the school. While attending that school, he performed in the concert band and jazz ensemble and the All-City High School Jazz Band. She testified that the student’s problems arose when he stopped attending school. Ms Solomon opined that the CSE’s recommendation was appropriate because the student did not have a history of academic underachievement, but she acknowledged that she did not know what was going on in the child’s mind which was obviously affecting his ability to attend school and learn (Transcript, pages 38-39). She testified that the CSE "… felt that if there was perhaps outside help that the parent could get to help this child and he could get him [the child] to attend, he would learn." (Transcript, page 39).

        Ms. Susan Runge, a social worker employed by the Family Foundation School, testified that it was a residential regular high school for high-risk students whose ages ranged from twelve to nineteen, in grades 7-12. She stated that she was not aware of any special education students in attendance at the school, but that the students attending exhibited a variety of problems ranging from eating disorders, oppositional defiant disorder, problems with authority and/or problems in the classroom. Some problems were drug and substance abuse related. She further testified that the typical profile of students attending the Family Foundation School was one of very poor grades, high potential, poor school attendance, running away from home, associating with deviant peer groups, depression, and anxiety.

        As head of the counseling department, Ms. Runge met with petitioners’ son on a daily basis. She reported that he appeared to be disoriented, hostile, confused, and very, very lost, with no sense of who or what he believed in. She testified that he was extremely bright, but low functioning. Ms. Runge stated the student’s academic performance had improved as a result of counseling, noting that his current academic average was in the 90’s. She pointed out that students were required to work at their studies, and that every minute of their day was scheduled. She noted counseling was inextricably linked to the academic component of the Family School (Transcript, pages 47-50).

        Ms. Runge opined that the student could not have attended a regular high school without support at that time. She also opined that he continued to need the counseling and support he was receiving at the Family Foundation School at the time of the hearing. She stated the student acknowledged that he felt he was not strong enough to resist temptation and that if he left the Family Foundation School he would return to his old behavior (Transcript, pages 49-50).

        The boy’s father testified that he took his son for private counseling at the recommendation of staff at the Stuyvesant High School. Despite counseling and the involvement of a psychiatrist, his son continued to have difficulty attending school. The father testified that he had unilaterally enrolled the boy in the Family Foundation School because the boy’s counselor and the principal of the City-As-School had advised him that his son required a residential placement.

        The hearing in this proceeding was held on June 14, 1999. The hearing officer rendered her decision on August 3, 1999. She found that petitioners’ son did not meet the criteria for classification pursuant to the Regulations of the Commissioner of Education. The hearing officer based her finding upon the fact that the boy’s academic performance had been satisfactory when he attended school on a regular basis, and she attributed his subsequent academic failure to his non-attendance. She found that the boy’s non-attendance was primarily attributable to his involvement with illegal drugs. However, the hearing officer also found that the private school which the boy was attending was appropriate to meet his particular needs.

        Petitioners challenge the hearing officer’s decision upholding the CSE’s recommendation not to classify their son as a child with a disability pursuant to the Individuals with Disabilities Education Act (20 USC 1400 et seq) and its State counterpart, Article 89 of the Education Law. The board of education bears the burden of establishing the appropriateness of the CSE’s recommendation that petitioners’ son not be classified (Application of a Child Suspected of Having a Disability, Appeal No. 93-18; Application of a Child Suspected of Having a Disability,Appeal No. 94-36; Application of a Child Suspected of Having a Disability, Appeal No. 94-41; Application of a Child Suspected of Having a Disability, Appeal No. 94-42).

        An emotionally disturbed child is defined by State regulation as:

"A student with an inability to learn which cannot be explained by intellectual, sensory or health factors and who exhibits one or more of the following characteristics over a long period of time and to a marked degree:

(i) an inability to build or maintain satisfactory interpersonal relationships with peers and teachers;

(ii) inappropriate types of behavior or feelings under normal circumstances;

(iii) a generally pervasive mood of unhappiness or depression; or

(iv) a tendency to develop physical symptoms or fears associated with personal or school problems.

The term does not include socially maladjusted students unless it is determined that they are emotionally disturbed." (8 NYCRR 200.1 [mm][4])

        Respondent asserts that the boy has a conduct disorder, and that a student with a conduct disorder is not per se eligible for classification as a child with a disability (A.E. Evans v. Independent School District No. 25 of Adair County, Oklahoma, 936 F 2d 422 [10^th Cir., 1991]). I must point out that the term "conduct disorder" is a medical term of art, and there is no evidence in the record that petitioners’ son has been so diagnosed. In any event, I agree that drug prevention and intervention are not the type of services which a school district is required to provide under the Individuals with Disabilities Education Act (Armstrong by Steffensen v. Alicante School, 44 F. Supp. 2d 1087 [E.D. Cal., 1997]). However, that is not dispositive of this matter.

        A child may be both socially maladjusted and have an independent serious emotional disturbance which would qualify him for services under the Individuals with Disabilities Education Act (Springer v. Fairfax County School Board, 134 F.3^rd 659 [4^th Cir., 1998]). This boy has been diagnosed by a psychiatrist as having certain disorders, which may in fact be relevant to the definition of an emotionally disturbed child under the Regulations of the Commissioner of Education. Indeed, the diagnosis of dysthymic disorder, which refers to chronic depression, is clearly relevant to that definition because a "generally pervasive mood of unhappiness or depression" is part of the definition. He has also been diagnosed as having an anxiety disorder and an impulse control disorder. A student may be classified as emotionally disturbed if his emotional condition significantly interferes with his ability to benefit from instruction in a regular education classroom (Application of a Child Suspected of Having a Handicapping Condition, Appeal No. 92-26).

        A student’s failure to perform in school because of absence from school does not per se afford a basis to suspect that the student has a disability (Application of a Child Suspected of Having a Handicapping Condition, Appeal No. 91-33). However, the record in this case reveals that the boy’s absence involves far more than simple truancy. Petitioners’ son did not attend school for an extended period of time, despite having received assistance from a social worker and a psychiatrist. The boy was enrolled in three different high school programs, in which he was also provided with extra assistance within the regular education program, and was still unable to remain in school. While the record does not establish that he has a true school phobia, he does have significant emotional problems, as indicated in Ms. Olexa’s report and Dr. Fras’ report, as well as Dr. Fried’s testimony. I find that the boy’s emotional problems significantly interfered with his ability to benefit from his regular education program, and that he would have been appropriately classified by the CSE as emotionally disturbed.

        Petitioners seek to be reimbursed for the cost of their son’s placement in a residential school. A board of education may be required to pay for educational services obtained for a child with a disability by the child’s parents, if the services offered by the board of education were inadequate or inappropriate, the services obtained by the parents were appropriate, and equitable considerations support the parents' claim. (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]). The fact that the facility selected by the parents to provide special education services to the child is not approved as a school for children with disabilities by the State Education Department (as in the case here) is not dispositive of the parents' claim for tuition reimbursement. (Florence County School District Four v. Carter by Carter, 114 S.Ct. 361 [1993]). The board of education bears the burden of demonstrating that it has offered to provide an appropriate educational program to the student (Matter of Handicapped Child, 22 Ed. Dept. Rep.487; Application of a Child with a Disability, Appeal No. 92-7; Application of a Child with a Disability, Appeal No. 93-9). In this instance, the CSE failed to recommend that petitioners’ son receive any special education or related service to meet his emotional needs. Therefore, I find that respondent has failed to meet its burden of proof with respect to the appropriateness of its program.

        The child's parents bear the burden of proof with regard to the appropriateness of the services which the parents obtained for the child at the Family Foundation School during the 1998-99 school year (Application of a Child with a Disability, Appeal No. 94-29; Application of the Bd. of Ed. of the Monroe-Woodbury CSD, Appeal No. 93-34; Application of a Child with a Disability, Appeal No. 95-57). In order to meet that burden, the parents must show that the services were "proper under the act" [Individuals with Disabilities Education Act] (School Committee of the Town of Burlington v. Department of Education, Massachusetts, supra 370), i.e., that the private school offered an educational program which met the child's special education needs (Application of a Child with a Disability, Appeal No. 94-29). The private school need not employ certified special education teachers, nor have its own IEP for the child (Application of a Child with a Disability, Appeal No. 94-20).

        The questions which I must now determine are what were the boy’s special education needs during the 1998-99 school year, and how did his placement at the Family Foundation School address those needs. As noted above, petitioners’ son has above average to superior cognitive skills, and his academic achievement had been consistent with his cognitive ability until he began to experience emotional difficulties. The principal of Stuyvesant High School reported that the boy had been scheduled to meet with a guidance counselor on a regular basis, and that the boy was supposed to use a period-by-period daily sign-in sheet so that his attendance and schoolwork could be monitored. However, he did not comply, despite promising to do so. She opined that the boy could not control his impulses or resist peer pressure. The principal recommended that petitioners’ son be placed in a highly structured educational environment in which he was given few choices (Exhibit 9). The social worker who began counseling the boy in March, 1998 reported that the boy could not attend a regular high school because of his poor impulse control and defiance. He recommended that the boy be placed in a highly structured residential setting with students who were functioning at his level (Exhibit 10). The principal of the City-As-School, the alternative high school which the boy briefly attended, also recommended that petitioners’ son be placed in a very structured residential school (Exhibit 6). The admissions coordinator of that school also reported that the boy seemed to be unable to take directions from authority figures and to meet school commitments (Exhibit 8). Having considered these recommendations in light of Ms. Runge’s description of the program provided by the Family Foundation School, I find that petitioners have met their burden of proof with regard to the appropriateness of the services provided by the private school (Application of a Child with a Disability, Appeal No. 98-67).

        In order to obtain an award of tuition reimbursement, the parents must also show that equitable considerations support their claim for reimbursement. The record indicates that petitioners cooperated with the CSE, and that they have been actively involved in attempting to get help for their son (Transcript, page 90). I find that their claim is supported by equitable considerations.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that the hearing officer’s decision is hereby annulled; and

IT IS FURTHER ORDERED that respondent shall reimburse petitioners for their expenditures for their son’s residential placement at the Family Foundation School during the 1998-99 school year, upon petitioners’ presentation of proof of payment for that placement.