02-048

        Petitioner appeals from an impartial hearing officer's decision that upheld the determination of respondent's Committee on Special Education (CSE) not to classify petitioner's daughter as a student with a disability. The appeal must be sustained in part.

        The student was 17 years old and in the 12th grade when the hearing began on October 10, 2001. At a meeting on July 30, 1998, respondent had determined that she was eligible for accommodations under Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. §794) (Section 504), due to recurrent migraine headaches that prevented her from attending school on a regular basis (Exhibit 26). As a Section 504 accommodation, she was placed on homebound instruction (Exhibit 62). Despite average intellectual ability, the student fell behind in her coursework because she canceled so many of her home tutoring sessions due to headaches (Exhibits 12, 56; Transcript February 14, 2002 pp. 26-27, 41). At the end of 11th grade, the student had only 12 credits toward the 18 she needed for graduation, placing her a year behind her originally anticipated graduation date of June 2002 (Exhibit 8; Transcript p. 301). Petitioner contends that his daughter should be classified under the Individuals with Disabilities Education Act (IDEA) and Education Law Article 89 as other health impaired (OHI).

        Petitioner's daughter has suffered from headaches since kindergarten (Exhibit 13). She did well in elementary school, and was still a B student in sixth grade (Exhibit 40). In seventh grade, however, she began to miss a significant number of school days due to increasingly severe headaches (Exhibit 3). During the 1996-97 academic year, the district sent letters home to the student's parents to inform them of her excessive absences (Exhibits 39, 37). Her attendance remained poor, and her report card for the 1996-97 school year indicated that she was barely passing most subjects (Exhibit 38).

        In the first quarter of the student's eighth grade year, her attendance became even more sporadic (Exhibit 28). School authorities continued to inform her parents about their concerns regarding her chronic absenteeism (Exhibits 34, 35). In December 1997, the student's parents wrote to the CSE chairperson to request an evaluation of their daughter for eligibility to be classified as OHI, based on her migraine headaches (Exhibit 33; Transcript p. 65). A neurologist's report dated March 1998 revealed that the student had a normal physical examination, but that she suffered from serious migraine headaches (Exhibit A). After receiving the neurologist's report, the student's pediatrician wrote to the CSE stating that he would endorse a classification by the CSE as "a student with a health impairment" based on her diagnosis of recurrent migraine headaches (Exhibit C). The student's eighth grade report card indicated that she received barely passing grades in each of her academic subjects, except science which she failed (Exhibit 28).

        On June 29, 1998, respondent invited the parents to a CSE meeting for an initial review. Petitioner and his educational advocate participated in the meeting by telephone (Exhibit 27). Although the record contains no documentation of the meeting's outcome, the CSE apparently recommended against classification of the student. Respondent's Section 504 committee met a month later on July 30, 1998, and determined that she was eligible for accommodations under Section 504, based on her migraine headaches and allergies (Exhibit 26). The committee determined that the student's headaches and allergies resulted in "absences…causing a decrease in academic performance." Her accommodation plan provided for home teaching on an "as needed" basis, reasonable time extensions for missed work and tests, and consideration of providing air conditioning for her (Exhibit 26). Respondent began providing her with full time homebound services in November 1998 (Transcript February 14, 2002 p. 24). She was exempted from physical education classes because of placement on homebound instruction (Transcript p. 301).

        The Section 504 committee met for an annual review at the end of the student's ninth grade year on June 9, 1999, and recommended that she continue on home tutoring (Exhibit 67). A few weeks later, the committee recommended that she take summer classes to make up some of her missed coursework (Exhibit 62). By letter dated June 9, 1999, the student's father requested that she be reevaluated by the CSE for classification under IDEA (Exhibit 66). By letter dated August 31, 1999, the student's pediatric neurologist wrote that she should continue with home tutoring (Exhibit 59). In September 1999, respondent's CSE administered intelligence and achievement testing to the student. On the Wechsler Intelligence Scale for Children-III (WISC III), the student scored a verbal IQ score of 102, a performance IQ score of 107 and a full scale IQ score of 105, placing her in the average range of cognitive functioning (Exhibit 23). On the Wechsler Individual Achievement Test (WIAT), she scored in the average range as well (Exhibit 24).

        During her tenth grade year, the student frequently canceled tutoring sessions due to her migraines (Transcript February 14, 2002 p. 41). In March 2000, her English tutor ceased working with the student, because of the erratic schedule and last-minute cancellations (Exhibit 56). A March 25, 2000 psychiatric evaluation indicated that the student had no psychiatric conditions and that she denied feeling sad or depressed (Exhibit 22). The evaluator recommended that she be transitioned back into a school setting, because she needed interaction with peers. A May 16, 2000 letter from the student's pediatric neurologist to the CSE reported that her migraine symptoms included visual disturbances, sensitivity to light, nausea, vomiting and weakness. It noted that the triggers were stress, exhaustion, climatic changes, allergies, certain foods and additives, and failure to adhere to a normal schedule for meals (Exhibit 21).

        On May 24, 2000, the CSE reviewed the results of the psychiatric and neurological examinations. It concluded that the psychiatric examination did not support a special education classification, but adjourned the meeting, upon the request of the parent's advocate, to seek clarification from the student's neurologist regarding his May 16, 2000 letter (Exhibit 20). The student failed to complete English 10 and social studies 10 on homebound instruction (Transcript p. 292).

        A June 14, 2000 letter from her pediatrician noted that petitioner's daughter had been in the emergency room several times that year for intravenous therapy for her migraines, and suggested continued home tutoring (Exhibit 53). Respondent's Section 504 committee recommended that the student receive summer tutoring to permit her to complete her courses and prepare for Regents examinations, if necessary, and that she continue to receive home teaching during the 2000-01 school year, pending CSE review as needed (Exhibits 51, 46, 47). Over the summer, the student completed social studies 10, but not English 10 (Transcript p. 292).

        On October 19, 2000, when the CSE met for another initial review, it found no evidence to support classification, but ordered an updated neurological examination and academic testing by the special education teacher (Exhibits 16, 17; Transcript November 30, 2001 p. 36). On November 17, 2000, the student was given the Kaufman Test of Educational Achievement (KTEA), on which she scored in the above average range on reading comprehension and the average range on all other subtests (Exhibit 14). She scored in the above average range on the written expression component of the Oral and Written Language Scales (OWLS) (Exhibit 15).

        The student failed to report for either her Biology Regents examination on January 23 or her Math Regents on January 24, 2001. The bus driver reported that when he arrived at her house to pick her up, nobody came outside (Exhibit 43). A March 2001 neurological update indicated a normal examination (Exhibit 13; Transcript November 30, 2001 p. 18). However, based on the student's history of intractable headaches and allergies and on notes from her pediatric neurologist, the neurologist agreed the student should be classified "other health impaired" and continue with home tutoring (Exhibit 13).

        On or about April 2, 2001, the student's English and social studies tutor resigned because of the student's inability to keep the scheduled appointments. The tutor reported that the student's father would call her with last-minute cancellations and turn down her offers of makeup time. She further stated that the student did minimal homework and had made little progress for the third quarter, and that she would give the student incompletes for both courses (Exhibit 12). At the hearing, the student admitted that she canceled her tutoring sessions whenever she had a migraine, which was once or twice a week on average, but sometimes every day of the week (Transcript February 14, 2002 pp. 26-27, 41). The student began working at a job in the community, but had to quit because of her migraines and allergies (Exhibit 11; Transcript p. 375).

        At the end of 11th grade, the student's cumulative grade point average was 74. She had not yet completed English 10, English 11 or social studies 11 (Exhibit 8), and would therefore not be able to graduate on time (Exhibit 75). On April 27, 2001, the student's father wrote to the district suggesting that the student had been denied a free appropriate public education (FAPE), because she did not have a tutor for health class and because her other tutor had resigned. He asked to schedule an emergency CSE meeting, requested copies of earlier testing, and noted that he had received the neurology update (Exhibit 9). The CSE convened on June 12, 2001, for what was designated in the minutes as another "initial" meeting. After reviewing the neurology update, it determined once again that the student did not qualify for classification as a student with a disability and referred her back to the Section 504 committee (Exhibit 6).

        By letter dated August 22, 2001, the parents requested an impartial hearing. They claimed, inter alia, that respondent had violated their daughter's rights by refusing to classify her under the IDEA, by filing a person in need of supervision (PINS) petition in Family Court and a Child Protective Services report, by unduly delaying evaluations and meetings regarding her program, and by failing to provide the parents with Section 504 accommodation plans. The parents did not request monetary relief or compensatory education, but requested that additional home tutors be provided for the student (Exhibit 3; Transcript p. 409). They also asked that the hearing request be heard by the hearing officer who presided over their earlier impartial hearing request in 1998. By a note dated September 13, 2001, the student's doctor recommended continued home tutoring for the 2001-02 school year (Exhibit 70).

        The hearing began on October 10, 2001. On November 27, 2001, the hearing officer decided in an interim ruling that the instant hearing case should not be considered a continuation of the hearing brought by petitioner in 1998, and should not be heard by the prior hearing officer (Exhibit IHO 1). At the hearing, the hearing officer declined to hear any dispute regarding the 1999-2000 and 2000-01 school years, finding that the parents, who were represented by an advocate at the time, waited too long to raise the issues arising from those earlier years (Transcript p. 258). He agreed to review only disputes related to the 2001-02 school year (Transcript p. 260). He ruled that the allegation of discrimination based on the filing of a PINS petition during the 1997-98 school year was untimely and not properly asserted in a due process hearing.

        The hearing ended on February 14, 2002, and the hearing officer rendered his decision on April 13, 2002. He denied each of the parents' requests, and found the district had met its burden of proving that the student was not other health impaired. He reasoned that there was no evidence her migraines and/or allergies affected her ability to learn. Instead, he attributed her inability to keep up with her peers to an inability to attend classes, explaining that she did not participate often enough in school or in her home tutoring sessions. He concluded that she failed to pass several courses because she canceled her tutoring sessions two to four times a week, and he opined that no amount of special education would address that. He recommended, however, that the district make sure that any testing of the student be done in an air conditioned room, and that respondent inform the student, when she becomes a senior, of opportunities such as the senior banquet and purchase of a senior ring.

        Petitioner requests the CSE's determination not to classify his daughter as a child with a disability at its June 12, 2001 meeting be annulled because no physical examination was reviewed. He asks that the CSE be ordered to reconvene to determine whether, in light of all the medical and educational documentation, his daughter meets the criteria to be identified as OHI. He also seeks a determination that respondent denied the student a FAPE by its delay in the referral and evaluation process.

        Respondent argues that all claims prior to the 2001-02 school year should be denied based on the doctrine of laches; that the State Review Officer (SRO) does not have jurisdiction to determine claims made under Section 504; that the CSE had sufficient evaluative information to determine whether the student should be classified; that the CSE properly determined that petitioner's daughter does not meet the criteria to be identified as a student with a disability; and that none of the procedural violations asserted by petitioner deprived his daughter of educational benefits or seriously hampered his opportunity to participate in the IEP process.

        The hearing officer properly ruled that petitioner's claims regarding academic years prior to 2001-02 were barred by the doctrine of laches. Parents must use the due process procedures promptly so that school districts are not prejudiced and authorities have an opportunity to correct a program error (Matter of Northeast Cent. Sch. Dist. v. Sobol, 79 N.Y.2d 598 [1992]; Bernardsville Bd. of Educ. v. J.H., 42 F.3d 149, 158 [3d Cir. 1994]; Application of a Child with a Disability, Appeal No. 98-5). Here, the parents, who had been represented since 1998 by an advocate working with a law firm, did not request an impartial hearing on the issue of classification under IDEA until the instant hearing request of August 2001. This decision will be limited to review of the issues related to the 2000-01 school year.

        In connection with petitioner's Section 504 claims, New York State law makes no provision for state-level administrative review of decisions by hearing officers regarding alleged violations of Section 504. Petitioner's remedy with respect to the appropriateness of the Section 504 accommodations provided by respondent is to seek judicial review of the hearing officer's decision (Application of a Child with a Disability, Appeal No. 99-10; Application of a Child with a Disability, Appeal No. 96-37). Consequently, the principal issue to be determined herein is whether respondent's CSE properly determined not to classify petitioner's daughter as a child with a disability at its June 12, 2001 meeting.

        A board of education bears the burden of establishing the appropriateness of a CSE's recommendation that a student not be classified as a student with a disability (Application of the Bd. of Educ., Appeal No. 02-066; Application of a Child Suspected of Having a Disability, Appeal No. 01-107; Application of a Child Suspected of Having a Disability, Appeal No. 00-001). To meet its burden of proof, respondent must first show that its CSE adequately evaluated the student (8 NYCRR 200.4[b]). An initial evaluation must include a physical examination, an individual psychological evaluation or assessment, a social history, an observation of the student in the current educational placement, and other appropriate assessments or evaluations (8 NYCRR 200.4[b][1]). 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 (Application of a Child Suspected of Having a Disability, Appeal No. 01-045; Application of a Child Suspected of Having a Disability, Appeal No. 01-007).

        Petitioner asserts that the CSE's determination should be annulled because it did not have a physical examination of the student at its June 12, 2001 meeting. According to its written report, the CSE considered reports of the March 2000 psychiatric examination (Exhibit 22) and the May 2000 neurological examination (Exhibit 21), as well as some September 1998 medical information at the meeting (Exhibit 6). There is no specific document in the record that could be construed as a physical examination in September 1998, and respondent's witnesses did not explain what, if any, information about a physical examination the CSE had at its June meeting. However, the neurologist described in some detail the physical effects of the student's migraine headaches that were her primary health issue. Moreover, the CSE also had the updated neurological evaluation by a second neurologist performed on March 1, 2001 (Exhibit 13) that indicated that the results of a general exam were normal.

        Nevertheless, I find that the CSE's recommendation must be annulled. Education Law §4401 (1) defines a student with a disability as "a person…who, because of mental, physical or emotional reasons can only receive appropriate educational opportunities from a program of special education…'Special education' means specially designed instruction which includes special services or programs….". "Special services or programs" are defined to include home instruction (Educ. Law §4401[2][a]).

        Other health impairment is defined 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]).

        The list of conditions in the definition of OHI is not meant to be exhaustive. If a student has limited strength, vitality or alertness, and her educational performance is adversely affected, the criteria are satisfied (See Letter to Sterner, 30 IDELR 266 [1998]). There is no dispute that petitioner's daughter had severe migraine headaches. A letter from her pediatric neurologist indicated that the headaches lasted from several hours to an entire day, and that she experienced sensitivity to light, nausea and weakness (Exhibit 21). Her father testified that she often had to lie down in a dark room and put ice packs on her head (Transcript p. 371). The student testified that reading for long periods made her vision blurry and caused headaches (Transcript February 14, 2002 pp. 26-27). Although she took two medications to prevent headaches and another medication after she got a headache, she had to go to the emergency room several times to receive medications intravenously when she had a particularly severe migraine (Transcript February 14, 2002 pp. 38-39).

        It is clear that the student's health condition met the first criteria of the statutory definition of OHI. Her strength and vitality were limited by her medical condition and she had limited alertness in the educational environment. In order to be classified as a child with a disability, however, a student must not only have a specific physical, mental or emotional condition, but the condition must adversely impact upon a student's educational performance to the extent that he or she requires special services and programs (34 C.F.R. § 300.7[c][9]; 8 NYCRR 200.1[zz][10]; Weixel v. Bd. of Educ., 287 F.3d 138 (2d Cir. 2002); Application of a Child Suspected of Having a Disability, Appeal No. 01-009).

        In this case, the student's headaches and chronic absences clearly had an adverse impact on her educational performance. Although she received good grades throughout elementary school, her migraines and resulting absenteeism began to interfere with her ability to keep up with her coursework in junior high school. She was unable to complete several classes, failed Regents examinations, and fell a year behind in her graduation date. As early as 1998, respondent's Section 504 committee had acknowledged in the student's accommodation plan that her ability to learn was affected by the headaches, noting that her absences from school caused a decrease in academic performance (Exhibit 26).

        In addition, to meet the definition of a student with a disability, the student must require special education services. The IDEA includes in its definition of a child with a disability "a child with… other health impairments…who, by reason thereof, needs special education and related services" (20 U.S.C. §1401[3][a][i]&[ii]). Special education is defined to include "instruction conducted…in the home" (20 U.S.C. § 1401[25][A]). Petitioner's daughter was unable to attend school for almost three years, and received home instruction for a protracted period of time because, by respondent's own interpretation, her academic performance was adversely affected (Exhibit 26). She required home instruction, which is included within the statutory definition of special education. In light of the above, the CSE's recommendation not to identify petitioner's daughter as a student with a disability must be annulled (Weixel, 287 F. 3d. at 150). I will remand the matter to the CSE to conduct any necessary additional evaluations and make a new recommendation within 30 days of the date of this decision.

        Petitioner also seeks a determination that the CSE unduly delayed its review of the neurological evaluation it had requested at its October 19, 2000 meeting. At that meeting, the CSE requested that an updated neurological evaluation and updated academic testing be performed. The latter was completed on November 17, 2000, but the former was not done until March 2001. Respondent did not receive a copy of the neurologist's report until May 9, 2001 (Exhibit 13). The record does not disclose the reason for the delay. The CSE reviewed the neurologist's report at its meeting on June 12, 2001. There was no undue delay.

        I have considered petitioner's remaining allegations and find them to be without merit.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the hearing officer's decision is hereby annulled to the extent indicated; and

IT IS FURTHER ORDERED that this matter is remanded to respondent's CSE to reconsider its classification determination within 30 days after the date of this decision.