02-009

         Petitioners appeal from a decision of an impartial hearing officer which denied their requests for reimbursement by respondent for an independent educational evaluation (IEE) for their grandson and for the addition of specific language to the student’s individualized education program (IEP) relative to the use of physical restraints and individual counseling. The appeal must be dismissed.

        Initially, I must address several procedural matters. Respondent asserts that the appeal should be dismissed because petitioners did not comply with the Regulations of the Commissioner of Education in initiating the appeal. State regulation requires that a notice of intention to seek review of an impartial hearing officer’s decision be served within 30 days after receipt of the decision and that the petition for review be served within 40 days of receipt of the decision (8 NYCRR 279.2 [b]). Petitioners assert that they received the hearing officer’s decision on September 14, 2001. They served a notice of intention to seek review upon respondent’s district clerk on October 15, 2001. The purpose of a notice of intention to seek review is to ensure that the record is provided to the State Review Officer. The record in this matter was provided. Therefore, petitioners’ minimal delay in serving the notice of intention to seek review had no impact on this proceeding (Application of a Child with a Disability, Appeal No. 98-21).

        Petitioners filed their petition with the Office of Counsel of the New York State Education Department (Office of Counsel) on November 6, 2001. The Office of Counsel notified petitioners that the petition could not be accepted because they had failed to submit proof of service upon respondent and the petition was unverified (8 NYCRR 275.5, 275.8, 279.2). Petitioners were advised that they could refile the petition. Shortly thereafter, petitioners personally served a notice with petition upon the school district clerk, but neglected to include the petition with the notice. Upon receipt of the verified petition, the Office of State Review of the New York State Education Department (Office of State Review) notified petitioners to personally serve the verified petition upon respondent in addition to the notice. In response to this notification, petitioners again attempted personal service upon the school district clerk. Respondent contends that an unverified and incomplete copy of the petition was placed in the school district clerk’s school mailbox.

        Although petitioners should have served a verified copy of their petition upon respondent, they did verify the copy of their petition which they filed with the Office of State Review. Under the circumstances, I will not dismiss their petition on this ground (Application of a Child with a Disability, Appeal No. 98-66).

        Respondent further contends that the petition has never been personally served upon it. I note that petitioners did file an affidavit of personal service with the Office of State Review. An appeal from a decision of a hearing officer is not generally dismissed for service irregularities, absent a showing of prejudice to the respondent (Application of a Child with a Disability, Appeal No. 93-7; Application of a Child with Disability, Appeal No. 93-2). I find that respondent has not been prejudiced by any alleged defects in the form and service of the petition in light of the fact that the Office of State Review supplied respondent with a complete copy of the verified petition with exhibits. Given these facts, I will not dismiss the petition for these alleged infirmities (Application of a Child with a Disability, Appeal No. 01-055; Application of a Child with a Disability, Appeal No. 93-2). I find that petitioners have made reasonable attempts at bringing this appeal and have expeditiously corrected any mistakes upon notice thereof. I also note that respondent was able to effectively respond to petitioners’ allegations in a timely manner upon receipt of the petition. Under these circumstances, I will exercise my discretion and excuse petitioners’ delay (Application of the Board of Educ., Appeal No. 01-043).

        Petitioners’ reply raises additional allegations in response to respondent’s answer. I must note that pursuant to Section 279.6 of the Regulations of the Commissioner of Education, their reply is limited to any procedural defenses interposed by respondent or to documentary evidence included with the answer. Consequently, I have not considered those allegations raised by petitioners in their reply which do not respond either to procedural defenses interposed by respondent or address additional documentary evidence included with the answer (Application of a Child with a Disability, Appeal No. 98-37).

        Petitioners have also submitted additional evidence not before the hearing officer. This additional evidence includes the student’s IEP for the 2001-02 school year, his current report card and a cassette tape purported to be a recording of respondent’s Committee on Special Education (CSE) meeting held March 5, 2002. This evidence concerns the 2001-02 school year, and according to petitioners confirms their long-held belief that the student does not need individual counseling by respondent. Documentary evidence not presented at a hearing may be considered in an appeal from the 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. 98-55; Application of a Child with a Disability, Appeal No. 95-41). This evidence became available to petitioners after the hearing had concluded. This evidence reveals that the student has been mainstreamed in all nonacademic classes and in one academic class. I will accept petitioners’ submissions, bearing in mind its relevance to the year in issue (Application of a Child with a Disability, Appeal No. 01-030).

        Petitioners’ grandson was 12 years old at the time of the hearing in July 2001. The student has been classified as a child with a disability and has been diagnosed as having attention deficit hyperactivity disorder (ADHD) and Oppositional Defiant Disorder (ODD) (Exhibit SD-48). According to the IEP dated March 9, 2001, the student is reluctant to attempt new assignments, is easily distracted and has serious difficulty with self-control and development of appropriate behaviors (Exhibit SD-109).

        On February 3, 1999, respondent’s child study team recommended that the student be referred to respondent’s CSE (Exhibit SD-1). The student’s third grade teacher referred him to the CSE on February 10, 1999, citing his poor academic performance as well as several teachers’ reports of his argumentative nature and disruptive behavior, which included making physical threats against teachers and fellow students (Exhibits SD-2, SD-5, SD-6, SD-58). Petitioners consented to initial evaluative testing on February 22, 1999 (Exhibit SD-3). On March 17, 1999, a social history was taken via a telephone conversation between the chairperson of the CSE and the student’s grandmother (Exhibit SD-7).

        A psychological evaluation was completed on March 30, 1999 by respondent’s school psychologist (Exhibit SD-10). On the Wechsler Intelligence Scale for Children – III (WISC-III), the student’s verbal IQ score of 94, performance IQ score of 93, and full scale IQ score of 93 placed him in the low average to average range of cognitive functioning (Exhibit SD-10). On the Kaufman Test of Educational Achievement (KTEA) also administered during this evaluation, the student achieved below grade equivalent (and standard) scores of 2.4 (81) for reading decoding, 2.6 (84) for reading comprehension, and a 2.5 (81) reading composite, and 2.4 (79) for spelling. The student achieved grade equivalent (and standard) scores 3.6 (87) for math computation, 2.9 (84) for math applications and a 3.3 (84) math composite (Exhibit SD-10). The school psychologist indicated that considerable time had been devoted to providing the student with structure and consistency in the school setting over the previous two years. He recommended a self-contained special education class focusing on improving self-esteem, developing an accurate understanding of behavior and its consequences, developing organizational skills and developing impulse control. The school psychologist also recommended that counseling be an integral part of the student’s program, and further suggested family involvement in community services to assist the family with the student (Exhibit SD-10). Petitioners were and remain adamantly opposed to individual counseling provided by respondent.

        On April 6, 1999, respondent’s CSE classified the student as emotionally disturbed, and recommended a fourth grade day treatment program at the Children’s Home of Wyoming Conference (Wyoming) (Exhibit SD-16). Wyoming is a private school approved by the New York State Education Department to provide instruction to children with disabilities ages 5-14. It offers counseling services and speech therapy in a 6:1+1 staff ratio environment. As part of the student’s admission process, respondent’s school psychologist provided a Multiaxial Assessment of Adjustment Disorder with Disturbance of Conduct – Chronic, ADHD – Combined Type, Borderline Personality Disorder, Reading Disorder and a Global Assessment of Functioning Scale rating of 40 due to "(current) frequent interpersonal relationship difficulties, wild stories/exaggeration of accomplishment" (Exhibit P-1).

        In the fall of 1999, the student was temporarily placed in a Delaware-Chenango-Madison-Otsego Counties Board of Cooperative Educational Services (BOCES) 12:1+1 special education needs (SEN) classroom while awaiting a vacancy at Wyoming (Exhibit SD-18). The student began attending Wyoming on October 25, 1999 (Exhibit SD-22). A psychological update completed on December 2, 1999 yielded a diagnostic impression of Oppositional Defiant Disorder (Exhibit SD-25). On February 23, 2000, petitioners unilaterally removed the student from Wyoming, claiming first that Wyoming was negligent for having sent the student home early one day and later suggesting that it was "a mental institution" (Exhibit SD-27, SD-29, SD-58). Respondent’s CSE convened on March 8, 2000 at petitioners’ request (Exhibit SD-29). At this meeting, petitioners notified the CSE that the student was scheduled for an electroencephalogram (EEG) in order to confirm a medical diagnosis of ADHD, and that the student would not be returning to Wyoming (Exhibit SD-29). In response to petitioners’ actions, the CSE recommended searching for another placement (Exhibit SD-29). During this interim period, the student was to receive tutoring provided by respondent (Exhibit SD-38).

        On March 28, April 7, and April 17, 2000, the student was evaluated by private psychologist, John Jody Dempsey, Ph.D. (Exhibit SD-48). The Woodcock-Johnson Tests of Achievement – Revised (WJ-R) and Woodcock-Johnson Cognitive Abilities – Revised (WJ-C) were administered. The student’s standard score for broad cognitive ability on the WJ-C was 79. On the WJ-R, the student achieved standard scores of 102 for letter-word identification, 99 for passage comprehension, 85 for calculation, 106 for applied problems, 101 for broad reading, and 94 for broad math. Dr. Dempsey reported that the results of structured interviews and clinical inventories were consistent with a diagnosis of "ADHD Mixed Type", as well as Oppositional Defiant Disorder. Dr. Dempsey referred the student back to his family physician for medical intervention for his ADHD, and recommended individual counseling for the student and behavior management counseling for petitioners.

        At a CSE meeting held April 12, 2000, prior to receiving Dr. Dempsey’s final report, petitioners informed the CSE that they had obtained a medical diagnosis of ADHD from a private psychologist (Exhibit SD-41). The CSE changed the student’s classification to other health impaired (Exhibit SD-43). On April 25, 2000, the student began attending a BOCES 6:1+1 SEN class (Exhibit SD-44). Petitioners did not seek reimbursement for the cost of Dr. Dempsey’s evaluation.

        The CSE reconvened on June 12, 2000 for the student’s annual review (Exhibit SD-54; Transcript p. 119). Dr. Dempsey’s evaluation was also discussed during this meeting (Exhibit SD-54; Transcript pp. 118-122). The minutes of the CSE meeting reflect a statement by the CSE chairperson that all of Dr. Dempsey’s suggestions were already in place in the classroom (Exhibit SD-43, SD-54). The CSE chairperson testified at the hearing that Dr. Dempsey’s recommendations were already part of the student’s IEP and that his testing was duplicative of the testing previously conducted by respondent (Transcript pp. 118-122).

        On June 23, 2000, the CSE met again at petitioners’ behest (Exhibit SD-58). At the meeting the CSE recommended that the student should remain in the BOCES 6:1+1 SEN class, and that a formal functional behavioral assessment (FBA) should be performed by the BOCES school psychologist. The CSE also indicated that the student’s IEP would be revised in the fall when the FBA was completed (Exhibit SD-58). Respondent asserts that petitioners refused to cooperate with the BOCES school psychologist. The record does reflect that petitioners limited the school psychologist’s access to the student as well as to his medical and school records (Exhibit SD-75, Exhibit SD-76, Exhibit SD-81, Exhibit SD-83, Exhibit SD-87). The school psychologist was ultimately able to observe the student and review his school records (Exhibit SD-87).

        Petitioners and respondent corresponded throughout the summer of 2000 on the issues of individual counseling and physical restraints (Exhibits SD-61, SD-67, SD-69). The student’s grandmother demanded written assurances from respondent that the student would not be counseled by respondent’s employees, nor would the student ever be physically touched for any reason (Exhibit SD-75). When respondent failed to meet these demands, petitioners again unilaterally removed the student from his BOCES 6:1+1 SEN placement on September 6, 2000 (Exhibit SD-76). The CSE met on September 15, 2000, prior to the completion of the FBA, wherein it was decided that the student would in fact remain in his current 6:1+1 SEN placement (Exhibit SD-82).

        The CSE reconvened on October 19, 2000, to consider petitioners’ request for the addition of specific language to the student’s IEP regarding the use of physical restraints and corporal punishment (Exhibit SD-90, SD-91). During this meeting, the student’s IEP was again revised in order to update the student’s evaluation dates and to incorporate the final FBA and a behavior intervention plan (BIP) into the student’s IEP (Exhibit SD-91). The date of the student’s most recent psychological evaluation was changed to April 7, 2000, which represented the IEE performed by Dr. Dempsey in March and April 2000 (Exhibit SD-91). This was the first time that the psychological evaluation had been updated since the student was initially classified. In addition, the CSE added the following language: "[t]he School District and DCMO BOCES is [sic] bound by 8 NYCRR 19.5 and 8 NYCRR 100.2 both of which prohibit corporal punishment as that term is defined in the Regulations. The District intends to follow the law in regard to your child" (Exhibit SD-91).

        By letter dated December 13, 2000, respondent advised petitioners of their options for the student’s placement for the 2001-02 school year and enclosed the revised October 19, 2000 IEP (Exhibit SD-95). On December 15, 2000, petitioners requested a due process hearing (Exhibit SD- 96). By letter dated January 4, 2001, petitioners advised the CSE of their rejection the IEP dated October 19, 2000 and withdrawal of all permission relative to special education (Exhibit SD-102, SD-103). Petitioners subsequently withdrew their hearing request after entering into a mediation agreement (Exhibit SD-106, SD-107). Pursuant to the agreement, the student was to begin attending a 12:1+1 SEN class on February 22, 2001. Petitioners also agreed to confer with Dr. Dempsey on the issue of individual counseling (Exhibit SD-106, SD-107). Subsequent to the mediation agreement, respondent’s CSE met to revise the student’s IEP to conform to the mediation agreement (Exhibit SD-108). By letter dated March 1, 2001, petitioners claimed that the FBA and BIP were invalid because the student was having adverse reactions to medication at the time of the evaluation. They requested another assessment (Exhibit SD-110).

        On March 14 and March 20, 2001, a second IEE was performed by another private psychologist, Vincent J. Monastra, Ph.D. (Exhibit SD-111). Approximately one week later, by letter dated March 27, 2001, petitioners requested a CSE meeting and advised respondent that "[s]ometime in the next 2 weeks you will be receiving a report from [Dr. Monastra] concerning [the student’s] disability" (Exhibit SD-113). Petitioners also requested that respondent arrange to have Dr. Monastra present at the CSE meeting (Exhibit SD-113).

        Respondent received Dr. Monastra’s report on April 12, 2001 (Exhibit SD-111). The report indicated that Dr. Monastra administered the Test of Variables of Attention (TOVA) and an EEG. The results of the TOVA indicated significant impairment in attentional abilities suggestive of an attention disorder. During the EEG, the student was required to complete four tasks which included reading from and listening to material from the KTEA and reproducing drawings from the Benton Visual Retention Test. The EEG results indicated abnormalities considered consistent with ADHD. Behavioral measures were obtained through checklists completed by the student’s grandmother and teacher and also through an interview with petitioners. Dr. Monastra opined that the results of the behavioral measures were supportive of a diagnosis of ADHD, Combined Type with evidence of oppositionalism and impaired anger control. The results of the neurospychological measures yielded an impression of ADHD, Combined Type, "[p]ending thorough medical evaluation for other conditions, which could contribute to attentional loss" (Exhibit SD-111).

        Respondent’s CSE met on April 26, 2001 to review Dr. Monastra’s report (Exhibit SD-115). During this meeting, Dr. Monastra conceded that the student could benefit from the type of individual counseling offered by respondent in the areas of social skills training and anger management (Exhibit SD-115). By letter dated May 30, 2001, petitioners requested reimbursement for the cost of the IEE conducted by Dr. Monastra (Exhibit SD-116). Respondent denied petitioners’ request by letter dated June 11, 2001, and advised petitioners of their intention to initiate a hearing to establish the appropriateness of its evaluations (Exhibit SD-118).

        The hearing began on July 25, 2001 and lasted for three days. The hearing officer identified nine issues to be decided. The hearing officer determined that petitioners were not entitled to be reimbursed for the IEE completed by Dr. Monastra because such evaluation provided no new information about the student’s program or placement. The next three issues concerned services to be provided by Dr. Monastra. The hearing officer found that petitioners were not entitled to reimbursement for Dr. Monastra’s participation in and presence at any CSE meetings. The hearing officer further found that respondent was not required to pay for Dr. Monastra’s counseling services, nor was it required to pay for transportation to and from those counseling sessions.

        The hearing officer next addressed whether the student’s IEP must provide for individual counseling by respondent. The hearing officer found that the student’s IEP should provide for individual counseling by counselors, social workers and psychologists employed by BOCES or by respondent for that purpose and certified by the State Education Department to provide such counseling to students in schools.

        The sixth issue before the hearing officer was whether the student’s IEP should contain specific provisions of state regulations concerning corporal punishment and the use of physical restraints. The hearing officer held that the student’s IEP could contain specific provisions of State Law regarding corporal punishment and physical restraint, but there was no legal requirement that it do so. She nevertheless directed respondent to insert such language into the student’s IEP. Since neither party challenges this part of the hearing officer’s decision, I do not review it (34 C.F.R. § 300.510 [a]).

        The hearing officer also found that respondent was not prohibited from having its attorney attend CSE meetings, and that respondent is not required to pay for an attorney to represent petitioners at CSE meetings.

        As to the eighth issue, the hearing officer held that the student’s current program and placement were appropriate with the addition of individual counseling to improve social skills and anger management.

        The final issue determined by the hearing officer was whether petitioners had been properly included in the process by which the CSE prepared their grandson’s IEPs. The hearing officer found that petitioners had been properly included.

        Petitioners challenge each of the hearing officer’s findings, except as noted above, and seek an order directing respondent to obtain a functional behavioral assessment of their grandson by some unspecified person in Syracuse. With regard to Dr. Monastra’s IEE, petitioners contend that they are entitled to an independent evaluation at public expense. According to federal and state regulations, upon request, a parent of a child with a disability is entitled to obtain an independent educational evaluation at public expense, if he or she disagrees with an evaluation obtained by the school district. Nevertheless, the right to an independent evaluation is subject to the right of a school district to initiate a hearing to demonstrate the appropriateness of its evaluation. If a hearing officer finds that a school district's evaluation is appropriate, a parent may obtain an independent evaluation, but not at public expense (34 C.F.R. § 300.502; 8 NYCRR 200.5 [g]). I agree with the hearing officer’s finding that respondent’s evaluation was appropriate. I find that Dr. Monastra’s evaluation was duplicative of both respondent’s evaluation in 1999 and that of Dr. Dempsey in 2000, with respect to the student having ADHD and oppositional behavior difficulties.

        Petitioners seek reimbursement for Dr. Monastra’s attendance at two CSE meetings and request compensation for his attendance at any future meetings which concern development of the student’s IEP. They claim that Dr. Monastra’s presence at CSE meetings is essential to the provision of a free appropriate public education (FAPE) because they were unaware of their grandson’s needs until Dr. Monastra’s April 2001 evaluation. Federal regulations provide that the IEP team shall include the parent of the child, at least one regular education teacher if the child is or may be participating in the regular education environment, at least one of the child’s special education teachers, a representative of the school district who is qualified to provide or to supervise the provision of specially designed instruction to meet the unique needs of children with disabilities, and an individual who can interpret the instructional implications of the child’s evaluation results. In addition, the IEP team shall include: "[a]t the discretion of the parent or the agency, other individuals who have knowledge or special expertise regarding the child, including related service providers as appropriate" (34 C.F.R. § 300.344 [a][6]). The regulation also provides that: "[t]he determination of the knowledge or special expertise of any individual described in paragraph (a)(6) of this section shall be made by the party (parents or public agency) who invited the individual to be a member of the IEP [team]."

        Although I find petitioners’ claims regarding the contributions of Dr. Monastra are belied by the record, he clearly can attend future CSE meetings at petitioners’ behest (34 C.F.R. 300.344 [a][6]). However, section 300.344 (a)(6) does not afford a basis for concluding that respondent must pay for Dr. Monastra’s attendance at such meetings. Therefore, I find petitioners’ claimed right to reimbursement and compensation relative to Dr. Monastra’s attendance at CSE meetings has no basis in fact or law.

        Petitioners also object to the presence of respondent’s attorney at CSE meetings because the attorney’s presence allegedly creates an adversarial environment. They seek an order either barring respondent’s attorney from attending CSE meetings or requiring respondent to pay for an attorney for them at CSE meetings. I agree with petitioners’ contention that the presence of respondent’s attorney could contribute to an adversarial atmosphere. The official interpretation of the federal regulations implementing the Individuals with Disabilities Education Act (IDEA) recognizes such a possibility, and counsels against attorney attendance at CSE meetings (34 CFR Part 300, Appendix A, Question 29).

        However, section 300.344 (a)(6) expressly provides for the participation of third parties that have knowledge or special expertise regarding the child. There may also be occasions when it is entirely appropriate for a school district attorney to be present at an IEP meeting, such as when there has been a legal ruling involving the child and the CSE and parent would benefit from having the attorney explain the ruling (Application of the Board of Educ., Appeal No. 00-034). Therefore, I must hold that petitioners are not entitled to an order barring respondent’s attorney from attending CSE meetings, nor are they entitled to their own attorney at public expense. This holding is consistent with the regulation at issue, as well as with prior decisions by the New York State Commissioner of Education on the subject (Application of a Child with a Handicapping Condition, 30 Ed Dept Rep 286; Application of a Student with a Disability, 36 Ed Dept Rep 152).

        Petitioners also object to respondent’s provision of individual counseling to the student, contending that such counseling is an invasion of family privacy. Respondent maintains that the student needs to be counseled in the areas of social skills training and anger management. Petitioners allege that respondent’s school psychologists are not qualified to counsel the student and have refused all individual counseling for their grandson. As a result, petitioners contend that they are entitled to Dr. Monastra’s services at public expense. They seek reimbursement for counseling and transportation costs incurred as well as compensation for future counseling sessions and transportation costs. Petitioners further request that the student’s IEP set forth that individual counseling must be provided by Dr. Monastra.

        Federal regulations mandate that each State develop and implement a comprehensive system of personnel development "to ensure an adequate supply of qualified special education, regular education, and related services personnel" (34 C.F.R. § 300.380 [a][2]). Section 200.6 (b)(3) of the Regulations of the Commissioner of Education requires that related services shall be provided to students with disabilities by individuals with appropriate certification or license in each area of related service. Counseling is a related service (Education Law § 4401 [2][k]). School psychologists must be certified pursuant to section 3004 (2) of the Education Law. The record reveals that those individuals employed by respondent as school psychologists are indeed properly certified school psychologists (Exhibit SD-62). Although petitioners prefer that the student be counseled only by Dr. Monastra, I find that respondent is not required to pay for petitioners’ chosen provider (Application of a Child with a Handicapping Condition, Appeal No. 91-19). I also find that respondent is not required to provide transportation for the student to attend counseling sessions with Dr. Monastra. I agree with the hearing officer’s finding that the student’s program and placement would be inappropriate without the provision of individual counseling. I find that the student’s IEP must provide for individual counseling. The parties agree that the student would benefit from some form of one-on-one anger management and social skills training. Dr. Monastra also conceded that the student would benefit from counseling in these areas (Exhibit SD-115).

        Finally, the record is replete with evidence of petitioners’ involvement in developing the student’s IEP. A CSE must afford a student’s parents a meaningful opportunity to participate in the development of the student’s IEP (Application of a Child with a Disability, Appeal No. 98-6). The failure of the CSE to accede to all of petitioners’ requests does not constitute a denial of a meaningful opportunity to participate (Application of a Child with a Disability, Appeal No. 98-6; Application of a Child with a Disability, Appeal No. 93-41). I find that petitioners were afforded a meaningful opportunity to participate in the development of the student’s IEP. I have reviewed each of petitioners’ remaining contentions as set forth in their petition and find them to be wholly without merit.

THE APPEAL IS DISMISSED.