01-009

      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 Winston Preparatory School (Winston) for the 1999-2000 academic school year. The hearing officer upheld the recommendation by a School Based Support Team, i.e., subcommittee of the Committee on Special Education (CSE), for Community School District 2 that the boy not be classified as a child with a disability. The appeal must be dismissed.

        At the onset, I note that petitioners' attorney has submitted an affirmation in which she has annexed a copy of an individualized education program (IEP) which was prepared for the boy by the CSE for Community School District 3 on October 18, 2000. The CSE recommended that the boy be classified as learning disabled and that he be provided with supplemental aids and services in a regular education program during the 2000-01 school year. While the IEP was not part of the record before the hearing officer, 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 if the record would be incomplete without it (Application of a Child with a Disability, Appeal No. 95-41). This new IEP was unavailable at the time of the hearing. As a result, I will accept it for the purposes of this appeal, and consider it to the extent it is relevant in determining the child's educational needs for the 1999-2000 school year.

        Petitioners' son was 13 years old, and enrolled in the seventh grade at Winston when the hearing began in May 2000. Petitioners adopted the boy shortly after his birth. The child's medical and developmental history was unremarkable (Exhibit 3). He is tall and husky, and is described as appearing much older than his actual age (Exhibits 3 and 5). The boy attended respondent's P.S. 234 for the elementary grades, and was enrolled in I.S. 881, the Clinton School, for sixth grade during the 1998-99 school year. While in elementary school, he reportedly demonstrated some inappropriate behavior, including some impulsive tendencies such as hitting, teasing, and using abusive language. His fifth grade teacher noted that the student might benefit from a structured academic setting with clear expectations, but that he did not require any remedial academic assistance (Exhibit F).

        In the fall of 1997, petitioners had their son privately evaluated by a psychologist, at the suggestion of the student's tutor (Exhibit A). The student achieved a verbal IQ of 108, and a performance IQ of 91, with the latter having been pro-rated because of a particularly low score on the coding subtest. He earned standard score (and corresponding percentile rank) of 109 (74) for letter-word identification, 110 (74) for passage comprehension, 96 (39) for calculation, and 124 (94) for applied problems on the Woodcock-Johnson Tests of Achievement – Revised (WJ-R). His expressive language skills were described as being superior to his receptive language skills. The psychologist noted that the student's academic skills appeared to be on a par with his cognitive skills, and opined that his behavioral difficulties were more likely to be caused by anxiety and emotional difficulties or environmental stress than an attention deficit disorder (ADD). The psychologist suggested that the parents consider a special school for their son, at least in part because of the student's desire to do well and please his parents. Tutoring and individual psychotherapy to build self-esteem were recommended.

        During the sixth grade at the Clinton School, the student continued to show some inappropriate behavior that resulted in his receipt of detention and other corrective measures. However, he continued to demonstrate a capability to receive passing scores academically. On his report card for the 1998-99 academic year, the student received grades of 72 in the humanities, 70 in mathematics, 73 in science and 88 in performing and visual arts (Exhibit 7).

        In the spring of 1999, petitioners requested that their son be evaluated to determine whether he was eligible for special education and related services. A school psychologist who evaluated the student in May 1999 reported that petitioners' son had achieved a composite score of 106 on the Stanford Binet Intelligence Scale, which was in the average range of cognitive functioning (Exhibit 5). The student showed strength in verbal ability and visual spatial skills, both of which were in the high average range, and weakness in numerical reasoning, which was at the low end of the low average range. Projective testing revealed concerns regarding identity and self-esteem.

        A CSE educational evaluator reported that the student had achieved grade equivalents of 8.2 for word recognition, 6.9 for reading comprehension, 6.7 for math calculation, 10.1 for applied problems, and 7.0 for written expression on the WJ-R (Exhibit 4). Petitioners' son was observed in his English class by a social worker, who reported that the student did not appear to be participating in the class, but was able to answer questions appropriately when called upon by his teacher (Exhibit 9). The parents obtained a physical evaluation of their son for respondent.

        On May 24, 1999, the School Based Support Team conducted an educational planning conference to review those reports with the petitioners. The team ultimately determined that the student was not in need of special education services, and declined to classify petitioners' son as a child with a disability (Exhibits 2 and 6). By letter dated August 18, 1999, petitioners gave formal notification to the district of their intention to place their son in the seventh grade at Winston for the 1999-2000 school year and seek reimbursement for his tuition at that school. Winston is a private school for students with learning disabilities located in the City of New York. It has not been approved for that purpose by the New York State Education Department.

        The impartial hearing was scheduled to begin in September 1999, but was adjourned by consent until May 18, 2000. It continued on two days in June 2000, and ended on July 13, 2000. At the hearing in this matter, petitioners presented the results of a number of standardized tests administered to the student upon his entrance to the Winston School. On the Woodcock Language Proficiency Battery, the student achieved grade equivalents of 8.9 in letter word identification, 9.8 in word attack, and 9.4 on his writing sample. On the Gray Oral Reading Test – 3, he scored a grade equivalent of 7.5 in passage rate, 10.9 in passage and accuracy, and 8.3 in comprehension. On the Stanford Math Diagnostic Test, he received grade equivalents of 12.3 in computation and 9.5 in concepts and applications. On the Gates McGinitie Reading Test he scored a grade equivalent of 3.7 in comprehension and a 6.5 in vocabulary (Exhibit G). The principal of respondent's Clinton School testified that the student displayed troublesome behaviors and was sent to his office on a number of occasions. He also testified regarding a number of out of school altercations involving the student. However, the principal opined that the student was experiencing a transition year at the Clinton School, which would account for some of the conduct, and he had hopes for improvement.

        The impartial hearing officer rendered his decision on November 15, 2000. He found that petitioners' son did not meet the criteria for classification as either other health impaired or emotionally disturbed pursuant to the Regulation of the Commissioner of Education, as the School Based Support Team had concluded. Having found that the student was not a child with a disability, the hearing officer denied petitioners' request for reimbursement.

        Petitioners challenge the hearing officer's decision upholding the School Based Support Team's determination that their son was not eligible to be classified as a child with a disability, as that term is defined in state regulation. A board of education bears the burden of establishing the appropriateness of a CSE's recommendation that a student not be classified as a child with a disability (Application of a Child Suspected of Having a Disability, Appeal No. 94-42; Application of a Child Suspected of Having a Disability, Appeal No. 94-41; Application of a Child Suspected of Having a Disability, Appeal No. 94-36; Application of a Child Suspected of Having a Disability, Appeal No. 94-18).

        Petitioners contend that the School Based Support Team's decision not to classify their son must be annulled because the student's regular education teacher did not fully participate in the meeting at which the School Based Support Team made its decision. They assert that the regular education teacher came to the meeting late and stayed for only about ten minutes. Respondent denies their assertion and argues that, in any event, the U.S. Department of Education has opined that, depending on a child's needs, the regular education teacher member of an IEP team need not participate in every decision made by the IEP team (34 C.F.R. Part 300, Appendix A, Question 24). I must note that petitioners did not raise the issue at the outset of the hearing, and that the student's father only briefly mentioned the regular education teacher's attendance during his testimony at the hearing. Under the circumstances, I find that there is an inadequate basis in the record to conclude that the School Based Support Team's determination should be annulled.

        At the hearing, petitioners urged that the student be classified as either emotionally disturbed or other health impaired. They contend in this appeal that the hearing officer erred by concluding that their child could not be classified as emotionally disturbed because he did not have an inability to learn. The hearing officer relied upon the definition of an emotionally disturbed child as it appeared in the Regulations of the Commissioner of Education when the School Based Support Team made its decision in May 1999. At that time, the term emotionally disturbed child was defined 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]).

        This definition has never been construed as literally requiring that a child have an inability to learn, but only that the child's emotional condition have a significant effect upon the child's educational performance (Application of a Handicapped Child, 24 Ed. Dept. Rep. 77; Application of a Child with a Handicapping Condition, Appeal No. 90-9; Application of a Child Suspected of Having a Handicapping Condition, Appeal No. 92-23).

        As of January 1, 2000, the definition of emotional disturbance was changed to read as follows:

[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]).

        In his decision, the hearing officer acknowledged that the regulatory definition had been changed after the School Based Support Team made its decision in May 1999, but pointed out that the revised definition was similar to the definition that was in effect when the Team made its decision. I agree with the hearing officer that the School Based Support Team's decision must be reviewed using the legal definition that was in effect when the Team acted. As noted above, the former definition of an emotionally disturbed child does not require a finding that the child is unable to learn, a point that the hearing officer acknowledged in his decision. He did not in fact find that petitioners' son could not be classified as emotionally disturbed because he was capable of learning. Instead, the hearing officer found that notwithstanding certain discrepancies in various mental skills, the student was achieving at a level that was commensurate with his overall cognitive ability. Consequently, the student's reported emotional difficulties could not be said to have significantly affected his academic performance. There must be a nexus between a child's emotional problems and his performance in school, requiring the provision of special education and related services (Application of a Child with a Disability, Appeal No. 99-47). Upon review of the record, I must concur with the hearing officer's finding that petitioners' son does not meet the definition of an emotionally disturbed child.

        Petitioners also contend that their son meets the criteria for classification as other health impaired, which is defined by state regulation as:

[H]aving limited strength, vitality or alertness, including a heightened alertness to environmental stimuli, that results in limited alertness with respect to the educational environment, that is due to chronic or acute health problems, including but not limited to a heart condition, tuberculosis, rheumatic fever, nephritis, asthma, sickle cell anemia, hemophilia, epilepsy, lead poisoning, leukemia, diabetes, attention deficit disorder or attention deficit hyperactivity disorder or tourette syndrome, which adversely affects a student's educational performance.

(8 NYCRR 200.1[zz][10]).

        Although there is evidence in the record that petitioners' son was being treated for diabetes, there is no proof that this condition affected his educational performance. In order to be classified as a child with a disability, a student must not only have a specific physical, mental or emotional condition, but such condition must adversely impact upon the student's educational performance to the extent that he or she requires special services and programs (Application of a Child Suspected of Having a Disability, Appeal No. 00-009).

        I have considered petitioners' other claims, which I find to be without merit.

THE APPEAL IS DISMISSED.