Application of a CHILD WITH 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 Pawling Central School District
Family Advocates, Inc., attorney for petitioners, RosaLee Charpentier, Esq., of counsel
Girvin & Ferlazzo, P.C., attorney for respondent, Karen S. Norlander, Esq., of counsel
Petitioners appeal from an impartial hearing officer’s decision which upheld a recommendation by respondent’s Committee on Special Education (CSE) to classify their son as emotionally disturbed, and which denied their request for an award of tuition reimbursement for the student’s attendance at the Kildonan School (Kildonan) during the 1999-2000 school year. The appeal must be sustained.
Petitioners’ son was 11 years old and a fifth grade day student at Kildonan in Amenia, New York at the commencement of the hearing. Kildonan provides instruction to students with language learning disabilities. The school has not been approved by the New York State Education Department to provide instruction to children with disabilities.
Petitioners’ son received various support services while attending the Pawling Elementary School for regular education kindergarten, pre-first grade, first, second, and third grades. In addition, petitioners provided their son with private tutoring in reading and weekly counseling to improve his self-concept since about the first grade (Exhibits QQ, 22). They also had their son privately evaluated in May 1998, when he was in the third grade. According to that evaluation, the student’s cognitive skills were in the high average range, and he had exceptional perceptual skills. He evidenced mild expressive and comprehension difficulties, and the evaluator opined that the student’s comprehension was dependent upon multisensory, concrete experience. She noted that although his academic scores were adequate, the student nevertheless manifested subtle attention and language problems. The psychologist recommended a speech/language evaluation, an evaluation by a developmental optometrist, and a possible referral to the CSE (Exhibit 1).
An eye physician who examined the student at petitioners’ request in June 1998 diagnosed the student with a left superior oblique palsy, which caused intermittent blurred vision, focussing delay, eyestrain, and diplopia (double vision). The physician recommended that the student lower his desk or elevate his chair in school or alternatively, wear prismatic reading glasses. He also recommended a reexamination to determine whether the prescribed glasses corrected the problem (Exhibit V-1).
The student attended respondent’s Pawling Elementary School for most of the fourth grade during the 1998-99 school year. He was enrolled in a regular education class and received reading support services. The student’s school work and report card grades were inconsistent during the first half of the 1998-99 school year (Exhibit CCC, Hearing Officer Exhibit 2). His teacher suggested a CSE referral and/or resource room services, but did not pursue the matter because petitioners did not wish the student to lose time in class (Transcript pp. 174-77, 355, 393). By the end of February 1999, petitioners were reportedly spending 3 1/2 hours a night assisting their son with homework.
During March and April 1999, the student was involved in incidents at school or at home where he reportedly either tried to harm himself or encouraged someone else to do so, stated that he was depressed, and that he was going to harm himself or other students. On March 23, 1999, after the second such incident, the student’s teacher referred him to the CSE, indicating that there were emotional difficulties at home, as well as school difficulties such as poor attention span, language articulation and processing deficits, organizational skill deficits, and cognitive processing difficulty (Exhibit 10).
On March 29, 1999, the CSE classified the student as learning disabled, and recommended that he receive group counseling and supplemental resource room services and have the benefit of preferential seating, study guides, elevated seating, and an extra set of his heavier textbooks for home use (Exhibits C, BB). The CSE requested a speech/language evaluation and a psychiatric evaluation (Transcript pp. 542, 989, 2650, 2673, 2692). Although the CSE minutes (Exhibit C p. 5) include references to a physical examination and an observation report, those documents are not in the record and it is not clear whether such were actually considered by the CSE.
In the resulting April 1999 speech/language evaluation, the student’s receptive and expressive language skills were found to be in the average range, but a test of his auditory processing skills revealed that they were in the disordered range. The evaluator recommended that the student be referred for a central auditory processing evaluation (CAPE) (Exhibit 25).
As a result of an incident on April 30, 1999, respondent’s acting elementary school principal determined that the student could not continue in school until his psychiatrist and the school’s counselor agreed that it was safe for him to do so (Transcript pp. 3049-50). The principal spoke to the student’s psychiatrist early the next week, and on his advice, placed the student on home instruction for the balance of the school year due to stress and anxiety (Transcript pp. 3076-77).
The student’s psychiatrist completed a psychiatric evaluation on June 22, 1999 (Exhibit 16). He diagnosed the student with a major depressive disorder, moderate without psychotic features, and a generalized anxiety disorder. He also identified poor self-concept and negative self-esteem. At the time of the report, the psychiatrist was prescribing Paxil and Clonidine for the student’s condition. The psychiatrist indicated that the student was experiencing an overwhelming amount of stress from his academic requirements and that his symptoms were exacerbated by excessive academic and social demands. The psychiatrist noted that petitioners’ son had reportedly been teased by his classmates. He indicated that that there had been some evidence of improvement in the student’s anxiety, depression, and agitation, and recommended that the school maintain sensitivity to his emotional needs and provide a nurturing environment.
As a follow-up to the April speech/language evaluation, the student received a CAPE in July 1999. The evaluator reported that the student had a severe auditory processing disorder. Specifically, the report noted that the student would have moderate difficulty listening and attending in the presence of background noise, was significantly below the mean in identifying target sounds, was at least two years below grade level in auditory decoding and the ability to blend individual phonemes correctly to form a word, and was more than two standard deviations below the mean in auditory processing abilities. The evaluator provided a list of 18 specific recommendations (Exhibit SS).
At a meeting on August 10, 1999, the CSE changed the student’s classification from learning disabled to emotionally disturbed, and recommended a placement in an 8:1:1 Board of Cooperative Educational Services (BOCES) special class designed as a therapeutic educational environment. It also recommended that he receive one session a week of both individual and group counseling, as well as the same program modifications and supports recommended at the March CSE meeting. The resulting individualized education program (IEP) (Exhibit 27) included goals and objectives relating to study skills and social and emotional development. Although the CAPE had been done in July of 1999, the CSE was apparently unaware of the results at its August meeting (Transcript p. 1137). The record is unclear as to whether the results of the psychiatric evaluation were considered (Transcript pp. 1141, 2715-2117).
The student’s mother rejected the CSE’s recommendation before the meeting ended. In a follow-up letter received by respondent on or about August 17, 1999 (Exhibit O), petitioners rejected both the CSE’s emotionally disturbed classification and the recommended BOCES special class placement. The letter also advised respondent that they were placing their son at Kildonan. Petitioners requested an impartial hearing on or about September 1, 1999.
The hearing commenced on November 15, 1999, and continued almost 18 months, concluding on April 2, 2001. On the last day of the hearing, the hearing officer stated that he was consolidating the proceeding with issues relating to the following year’s (2000-01) IEP. The hearing officer issued his decision on June 15, 2001. He concluded that the CSE’s classification was proper, that its recommended program for the 1999-2000 year was reasonably designed to provide the student with a free appropriate public education, and that the IEP complied with the law and regulations. He also set an initial hearing date with respect to the 2000-01 IEP.
Petitioners challenge their son’s reclassification, and contend that he should remain classified as learning disabled. They argue that the CSE did not adequately evaluate the student before recommending that his classification be changed, and that it failed to prepare an appropriate IEP for him. Petitioners assert that Kildonan provided an appropriate education to their son during the 1999-2000 school year. Finally, petitioners argue that the hearing officer improperly declared jurisdiction over petitioners’ subsequent complaints.
A board of education bears the burden of establishing the appropriateness of the classification recommended by its CSE (Application of a Child with a Disability, Appeal No. 94-16; Application of a Child Suspected of Having a Disability, Appeal No. 94-8; Application of a Child with a Handicapping Condition, Appeal No. 92-37; Application of a Child with a Handicapping Condition, Appeal No. 91-11). According to the regulations in place at the time of the CSE meeting, emotionally disturbed means:
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.
(former 8 NYCRR 200.1[mm]).
I find that respondent did not meet its burden to show that its CSE had properly reclassified the student as emotionally disturbed. It has not shown that the problems in the student’s educational performance were not the result of sensory or health factors. The CSE did not consider the CAPE which was recommended by the CSE’s April 1999 speech/language evaluation. As noted above, the CAPE revealed that the student had a significant auditory processing disorder. There is no evidence that the CSE had the results of a current physical examination. This is especially significant in light of the fact that the student was reportedly having problems relating to his previously diagnosed condition of encopresis during the fourth grade, as well as the fact that the 1998 ophthalmic evaluation revealed that the student had a vision problem that would affect his reading if not properly addressed.
The CSE should have considered the results of a psychiatric evaluation before classifying the student as emotionally disturbed. Notwithstanding its determination in March 1999 that petitioners’ son should be evaluated by a psychiatrist, the CSE concluded in August 1999 that the student was emotionally disturbed without the benefit of a psychiatrist’s evaluation. As noted above there is mixed evidence in the record about the existence of the psychiatrist’s report at the August meeting. Petitioners have alleged in their petition that the report was not available to the CSE at its August meeting, and respondent admits in its answer that its CSE did not have the report. In addition, I must note the record does not support a finding that the student manifested any of the required characteristics for classification as emotionally disturbed over a long period of time.
I do not review the CSE’s initial determination to classify the student as learning disabled in March 1999. Nevertheless, I am aware that the hearing officer found that petitioners’ son did not meet the criteria for classification as a student with a specific learning disability because he did not manifest a significant discrepancy between his expected and actual achievement (former 8 NYCRR 200.1[mm]). I find that there is adequate evidence in the record to support a classification as speech impaired because that term was defined under the regulations in effect at the time to include a language impairment (former 8 NYCRR 200.1[mm]; Application of a Child with a Disability, Appeal No. 01-077). The student’s auditory processing difficulties clearly affected his ability to use language, which is essential to learning. Accordingly, I find that petitioners’ son was a child with a disability during the 1999-2000 school year.
A board of education may be required to pay for educational services obtained for a disabled student by his or her parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent’s claim (Burlington School Comm. v. Dep't of Educ., 471 U.S. 359 ). A board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (Application of a Child Suspected of Having a Disability, Appeal No. 93-9; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Handicapped Child, 22 Ed Dept Rep 487 ). To meet its burden, a board of education must show that its recommended program is reasonably calculated to confer educational benefits (Board of Educ. v. Rowley, 458 U.S. 176 ). The recommended program must also be provided in the least restrictive environment (34 C.F.R. § 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 student’s needs, establishes annual goals and short-term instructional objectives related to those needs, and provides for the use of appropriate special education services (Application of a Child with a Disability, Appeal No. 93-12; Application of a Child with a Disability, Appeal No. 93-9). Having found that the CSE failed to adequately evaluate petitioners’ son to support a change in his classification, I must also find that it has not properly identified his educational needs. His educational needs must be correctly identified in order to prepare annual goals that are related to meeting those needs. Once his needs have been accurately identified and appropriate goals have been prepared, the CSE must determine what special education services are necessary to allow the student the opportunity of achieving those goals in the least restrictive environment. Under the circumstances, I must find that respondent has not met its burden of proving that it had offered to provide an appropriate educational program to petitioners’ son during the 1999-2000 school year.
Petitioners bear the burden of proof with regard to the appropriateness of the services provided to their son by Kildonan during the 1999-2000 school year (Application of a Child with a Disability, Appeal No. 95-57; Application of the Bd. of Educ., Appeal No. 94-34; Application of a Child with a Disability, Appeal No. 94-29). In order to meet that burden, they must show that the private school offered an educational program which met the student’s special education needs (Burlington School Comm. v. Department of Educ., 471 U.S. at 370; 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 student (Application of a Child with a Disability, Appeal No. 94-20).
Kildonan is a co-educational day and boarding K-12 college preparatory school for students who have language learning disabilities, with a primary focus on those with dyslexia (Transcript pp. 2418, 2420, 2423). Average class size in the school’s lower grades is about six students (Transcript p. 2422). Kildonan uses the Orton-Gillingham approach to teaching language skills, a sequential, structured, multisensory method of teaching language (Transcript p. 2418). Each elementary student’s daily program includes content area classes, a special language training program consisting of a 45 minute daily 1:1 tutorial, a supervised study hall period for homework, and a physical education program (Transcript pp. 2418, 2421, 2486-89). Fifth grade homework is about an hour a day, and is completed during the school day to avoid any resulting stress on the students (Transcript pp. 2489-91). The school deals with depression and self-esteem issues through the daily 1:1 tutorials, the structured school day schedule, and its confidence building sports and physical education program (Transcript pp. 2427-28).
Petitioners enrolled the student in Kildonan’s summer program at the end of the fourth grade. The student did well and returned for fifth grade in the 1999-2000 school year. A review of narrative grade reports show no reference to violence, self-destructive behavior, or to threats of such behavior as had occurred in March and April 1999 at respondent’s school, and many references to good conduct (Exhibit III). Despite his disability, the student achieved grades at the outstanding level in 11 of his 12 reported academic grades during that year. Standardized test results from Kildonan indicate that the student made slight progress in reading and math while attending the school during the 1999-2000 school (Exhibits HHH, MMM).
Notwithstanding the student’s slow progress during the 1999-2000 school year, I find that the educational program Kildonan provided the student was appropriate for his needs. As described above, key elements to address these included its small classes, individualized instruction within the daily 1:1 tutorial, a supervised study hall for his homework that removed the stress the student experienced when doing that at home, a recreational and physical education program that supported the development of his self- esteem, and the use of an orderly, sequential, and multisensory instructional technique to address his language deficiencies. Petitioners have therefore prevailed with respect to the second criterion for an award of tuition reimbursement.
The third and final criterion for an award of tuition reimbursement is whether petitioners’ claim is supported by equitable considerations. The record reveals that petitioners provided the 1998 private psychoeducational evaluation to respondent’s staff prior to the beginning of the 1998-99 school year; that they met with the student’s teacher during the school year to discuss their concerns about their son’s education; and that petitioners attended and participated in the March and August 1999 CSE meetings.
Respondent argues that the equities do not support petitioners’ claim. It asserts that petitioners failed to make their son available for a requested evaluation, and that they unnecessarily delayed the hearing by requesting access to information contained in respondent’s staff files and submitted evaluations subsequent to the commencement of the hearing, and in one or more cases, after the close of respondent’s case-in-chief. It appears that respondent is referring to a request made by its director of special education on September 3, 1999 for a psychiatric evaluation to be performed by the local BOCES (Exhibit NN). I note that the request was made after the CSE had made its recommendation and after petitioners had requested a hearing. Although petitioners subsequently submitted a brief written second opinion letter from another psychiatrist (Exhibit 32), it is well settled that a school district may insist upon its own evaluation (Vander Malle v. Ambach, 673 F.2d 49 [2d Cir. 1982]). Nevertheless, there is no factual basis in the record for me to conclude that petitioners’ alleged refusal to consent to the September 3 request for an evaluation prevented the CSE from performing its responsibility to make a timely and appropriate recommendation for the 1999-2000 school year.
The record reveals that the hearing in this matter was protracted and contentious, the responsibility for which lies with both parties. I do not review respondent’s questions of petitioners' access to documents and the submission of documents. Respondent has not pointed to any specific document that it provided to petitioners over its own objection and at the hearing officer’s direction. Further, respondent consented to the admission into evidence of the "late" documents that it would now question.
I am troubled by petitioners’ failure to keep respondent apprized of the status of the psychiatric and the CAPE evaluations. Nevertheless, it is the CSE’s responsibility to have adequate information about a student’s special education needs in order to prepare an appropriate IEP (Application of the Bd. of Educ., Appeal No. 01-014; Application of a Child with a Disability, Appeal No. 96-53). It was therefore respondent’s duty subsequent to the March 1999 CSE meeting and its receipt of the April 1999 speech/language evaluation to ensure that the recommended psychiatric and auditory processing evaluations were both completed and in hand prior to considering the student’s 1999-2000 educational program. In light of the circumstances above, and after considering respondent’s arguments, I do not agree that the request for tuition reimbursement should be denied on the basis of equitable considerations. I find that equitable considerations support petitioners’ claim for tuition reimbursement.
Finally, on this record, I agree with petitioners that the hearing officer should not have scheduled hearings on the student’s 2000-01 IEP. Respondent’s first request to consolidate a possible challenge to the 2000-01 IEP with this proceeding was denied by the hearing officer as premature on September 21, 2000 (Transcript p. 1379). On the last day of the hearing, the hearing officer asked if the student’s IEP for the 2000-01 school year had been challenged. Although the Board of Education’s attorney responded in the negative, the hearing officer indicated that he would entertain a motion to consolidate (Transcript pp. 3030-3031). Subsequent to an off-the-record discussion, the hearing officer indicated that a motion to consolidate petitioners’ request for tuition reimbursement for the 1999-2000 school year with a challenge of the IEP for the 2000-01 school year had been granted (Transcript p. 3097).
A hearing officer may consolidate issues raised in different hearing requests into a single hearing (Application of a Child with a Disability, Appeal No. 95-51). A consolidation of proceedings assumes the existence of multiple, but separate, existing hearing requests regarding the same student. In this case, there is no specific and clear statement that at the time of the hearing officer’s consolidation decision there was another pending proceeding relating to the student (Transcript pp. 1379, 3030-32, 3034-35, 3098-3104). Importantly, if there were no second, pending proceeding, the hearing officer’s "consolidation" determination was actually a determination to retain jurisdiction over a subsequent proceeding. However, a decision to retain jurisdiction over a subsequent matter requires the consent of both parties (Application of the Bd. of Educ, Appeal No. 99-77; Application of a Child with a Disability, Appeal No. 96-45). In light of petitioners’ on-the-record objection to the hearing officer considering the 2000-01 IEP (Transcript pp. 3031, 3034, 3101), and given the absence of clear and specific information in the record that petitioners had commenced an appeal relative to the 2000-01 IEP, I find that the hearing officer erred in maintaining a right to consider claims relating to the student’s 2000-01 IEP.
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 the cost of their son’s day tuition at Kildonan during the 1999-2000 school year, upon petitioners’ submission of proof of payment for such expenditures if they have not already done so.