01-107

       Petitioners appeal from an impartial hearing officer’s decision denying their request to be reimbursed for the cost of their son’s attendance at the Carolina Springs Academy during the 2000-01 school year because the student did not meet the definition of a student with a disability as set forth in the Individuals with Disabilities Education Act (IDEA) (20 USC §1400 et seq.) and Article 89 of the New York State Education Law. Respondent cross-appeals from the hearing officer’s finding that it had not met its burden of proof with respect to the Committee on Special Education’s (CSE) recommendation that petitioners’ son not be classified because the CSE failed to observe the student in his educational placement. The appeal must be dismissed. The cross-appeal must also be dismissed.

        At the time of the impartial hearing petitioners’ son was 16 years old. He had attended P.S. 36 from kindergarten through the fifth grade. During elementary school, it was reported that he was disruptive in class, he lacked respect for authority figures, and his reading and math skills were delayed. However, I note that the student’s cumulative record indicates that his academic achievement, social development, and attendance were generally satisfactory (Exhibit 6). In 1995, he was evaluated by the CSE, which recommended that he not be classified as a student with a disability (Exhibit 3). After elementary school, the student attended I.S. 75. His mother indicated in the student’s social history that she had received almost daily phone calls from her son’s teachers and the school dean regarding his behavior. He was reportedly suspended from school for bringing a play gun to school. The student’s cumulative record indicates that during the sixth, seventh, and eighth grades, he achieved cumulative averages of 91, 93, and 90, respectively, and that he attended school on a regular basis (Exhibit 6).

        Concerned that their son would not be able to manage in a large school, petitioners enrolled him in Moore Catholic High School for the ninth grade during the 1999-2000 school year. The student was reportedly asked to leave that school in January 2000 because of his poor behavior and his inability to follow school rules. His academic record at the private school indicates that he achieved satisfactory grades during the first quarter of the school year, but his second quarter grades for English and global studies were just above passing (Exhibit 6).

        Petitioners enrolled their son in respondent’s Tottenville High School (Tottenville) in February 2000 for the remainder of the ninth grade. During the spring of 2000, petitioners’ son achieved averages of 65 for English, 55 for global studies, and 65 for Spanish and business law. Although no average was reported for the student’s performance in sequential math, I note that he apparently achieved a grade of 84 on the Regents examination. He had earned 12 units of high school credit by June 2000 (Exhibit G). His overall academic average was a 65.83 (Exhibit B). On his report card, the student’s English teacher noted that he needed to work harder and he had poor work habits. The student’s global studies teacher described him as being a distracting influence in class, and his business law teacher described him as being generally non-cooperative. During the four months the student attended Tottenville, he reportedly cut classes approximately 60 times (Exhibit B).

        By letter dated May 23, 2000, the student’s mother requested that respondent’s CSE evaluate her son because he might have an attention deficit hyperactivity disorder (ADHD) (Exhibit A). At the hearing, the mother testified that she met with one of respondent’s social workers to discuss her son’s behavior problems, and was reportedly advised that her son was simply a normal defiant teenager. Relying on the social worker’s advice, the student’s mother withdrew her request for an evaluation by the CSE. According to the mother, the student’s behavior worsened in May and June 2000, to the point that she had no control of him (May 15, 2001 at 3:30 p.m. Transcript p. 12).

        Petitioners’ son was arrested for drawing graffiti on a building, and was placed on probation in August 2000. On August 19, 2000, petitioners placed their son in the Carolina Springs Academy (Carolina Springs), which is located near Abbeville, South Carolina (Exhibit 10). According to a handwritten note by a probation officer, the student’s case would proceed to court if he did not attend Carolina Springs (Exhibit C). Carolina Springs is not approved by the New York State Education Department to provide instruction to children with disabilities. It offers a regular education curriculum and requires its students to participate in a series of social and emotional growth seminars to enhance self-esteem, honesty, accountability, communication and leadership. According to its brochure, the students follow a merit system that requires them to earn their status and privileges. Each level of the program offers additional privileges, motivating students to work harder (Exhibit E).

        On December 27, 2000, the student’s mother again referred her son to the CSE for an evaluation (Exhibit D). The mother provided information for a social history and signed a consent to evaluate on January 20, 2001 (Exhibits 4, 5). On March 15, 2001 a psychologist licensed in South Carolina evaluated the student for the CSE. The psychologist reported that on the Wechsler Intelligence Scale for Children Third Edition (WISC-III) petitioners’ son received a verbal IQ score of 92, a performance IQ score of 98 and a full scale IQ score of 94, which placed him within the average range of intellectual functioning. The student showed relative strength in attention, short-term memory, visual motor coordination and psychomotor speed. However, he was relatively weak in verbal resources and understanding, ability to comprehend sequence, and anticipation of consequences. The psychologist reported that the student’s math skills were below grade level, but his standard scores on the Wide Range Achievement Test-Revision 3 in reading, spelling and arithmetic were consistent with his overall ability.

        On the Reynolds Adolescent Depression Scale (RADS) the student’s scores did not indicate the presence of depressive symptoms. Instead, he reported feeling happy and important most of the time. However, the psychologist noted that when she administered this test, the student had been receiving therapy from her at Carolina Springs for almost six months. At the hearing, she opined that the student’s scores on the RADS could have been different if she had tested him when he first arrived at Carolina Springs (May 15, 2001 at 1:35 p.m. Transcript pp. 91-92). In her written report, the psychologist concluded that there was no indication of any specific learning disabilities or emotional problems, but noted that petitioners’ son was very rigid in his thinking. She diagnosed him as having disruptive behavior disorder not otherwise specified and dysthymic disorder (Exhibit 12). At the hearing, she testified that the dysthymic disorder should not interfere with his ability to learn or function in the classroom (May 15, 2001 at 1:35 p.m. Transcript p. 86).

        On April 5, 2001, respondent’s CSE met to determine whether petitioners’ son should be classified as a student with a disability. The CSE reviewed the initial individual evaluation of the student, which consisted of student’s social history, a physical exam and the psychological evaluation conducted on March 15, 2001. Although an observation of the student in his current educational setting was required by 8 NYCRR 200.4(b)(1)(iv), one was not conducted. The CSE recommended that petitioners’ son not be classified as a student with a disability (Exhibit 13). In the minutes of its meeting, the CSE noted that the student’s academic performance was above his potential at that time, and although he had behavior problems while attending Tottenville, those problems had been reportedly resolved according to one of his teachers (Exhibit 14).

        Petitioners requested that an impartial hearing be held. The impartial hearing began on April 5, 2001, and concluded on July 11, 2001. In a decision dated October 26, 2001, the impartial hearing officer held that petitioners could not be awarded tuition reimbursement for the unilateral placement of their son in Carolina Springs because the student did not meet the criteria of a student with a disability as set forth in the IDEA and Article 89 of the New York State Education Law. He further found that the parents could not meet their burden of proving that Carolina Springs had provided appropriate services to address the student’s special education needs because he did not have such needs. In reaching that conclusion, the hearing officer found that respondent had not met its burden of proof with respect to its CSE’s recommendation not to classify petitioners’ son because the CSE had failed to observe the student in his current education setting.

        Petitioners assert that their son had a disability that prevented him from succeeding academically and socially. They contend that their son required a structured educational setting, which Carolina Springs provided, and that they should be reimbursed for the cost of placing him in that facility. Respondent argues that petitioners do not have standing to request tuition reimbursement under the IDEA because the student had not previously received special education and related services under the authority of a public agency as set forth in 20 USC §1412(a)(10)(c)(ii). In addition, respondent asserts that its failure to observe the student in his current educational setting was a de minimis error that does not afford an adequate basis for annulling the CSE’s recommendation. It asks that the hearing officer’s finding that it had not met its burden of proof be annulled.

        The first issue that I must address is respondent’s contention that petitioners do not have standing to seek reimbursement under the IDEA because their son had not previously received special education and related services under the authority of a public agency. I find respondent’s claim to be without merit. As respondent knows, the New York State Review Officers have consistently declined to construe 20 USC §1415 as precluding an impartial hearing officer, a review officer or a court from granting an award of tuition reimbursement to the parents of a child who has not previously received special education and related services under the authority of a public agency (Application of a Child with a Disability, Appeal No. 01-079; Application of a Child with a Disability, Appeal No. 00-012; Application of a Child with a Disability, Appeal No. 98-69).

        I will next address respondent’s claim that the hearing officer erred in finding that it had not met its burden of proof with respect to the CSE’s recommendation. The board of education bears the burden of establishing the appropriateness of the 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. 00-001; Application of a Child Suspected of Having a Disability, Appeal No. 93-18). I have considered respondent’s assertion that its failure to observe the student in his current educational placement was a de minimis error. However, it is well settled that a CSE must perform each of the required elements of an initial evaluation in order to sustain its recommendation with respect to classification or placement, and that an observation is required as part of a student’s initial evaluation (Application of a Child with a Disability, Appeal No. 01-007; Application of a Child Suspected of Having a Disability, Appeal No. 94-41; Application of a Child Suspected of Having a Handicapping Condition, Appeal No. 91-20; Application of a Child with a Handicapping Condition, 27 Ed Dept Rep 456 [1988]). I find that respondent’s argument is without merit. I have considered respondent’s other arguments and I find them also to be without merit.

        Although I agree with the hearing officer that the CSE’s recommendation not to identify petitioners’ son as a child with a disability must be annulled, it does not follow that petitioners are entitled to an award of tuition reimbursement. Tuition reimbursement is a remedy for a denial of a free appropriate public education (FAPE). The obligation to provide a FAPE is limited to students who meet the criteria for identification as children with disabilities under the IDEA and Article 89 of the New York Education Law (Application of the Bd. of Educ., Appeal No. 01-058). I must therefore consider the record to ascertain whether there is sufficient evidence to afford a basis for finding that the student meets the criteria for identification as a child with a disability.

        Petitioners rely upon the fact that their son had a history of school problems including defying authority, being a distracting influence in class and cutting classes. Although the student has in general achieved satisfactory grades in school, he achieved a barely passing academic average while attending Tottenville in the spring of 2000. Petitioners also rely upon the diagnoses of disruptive behavior disorder not otherwise specified and dysthymic disorder given by the psychologist who evaluated the student for the CSE to support their position for classification. However, the psychologist evaluating the student testified that the student did not have an emotional or learning problem (Exhibit 12; May 15, 2001 at 1:35 p.m. Transcript pp. 85-86). Moreover, she indicated that although he was diagnosed as having dysthymia, that should not have interfered with his ability to learn or to function in the classroom because the student did not have symptoms of a major depressive disorder.

        In order to be classified as a child with a disability under federal regulation (34 C.F.R. § 300.7[a][1]) or its state counterpart (8 NYCRR 200.1[zz]), a student must not only have a specific physical, mental or emotional condition, but such condition must adversely impact upon a 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. 94-42; Application of a Child Suspected of Having a Disability, Appeal No. 94-36). After reviewing the record I am unable to find that petitioners’ son required special education. Therefore, I must uphold the hearing officer’s determination that petitioners’ son was not eligible for classification as a child with a disability, and that petitioners were not entitled to an award of tuition reimbursement.

THE APPEAL IS DISMISSED.

THE CROSS-APPEAL IS DISMISSED.