02-066

        Petitioner, the Board of Education of the Catskill Central School District, appeals from the decision of an impartial hearing officer finding that it failed to meet its burden of establishing the appropriateness of the recommendation of its Committee on Special Education (CSE) that the student not be classified as a child with a disability. The hearing officer found that the student should have been classified as having a disability for the 2001-02 school year. After considering the equities and the least restrictive environment requirement, the hearing officer ordered petitioner to reimburse respondents for a percentage of the cost of their son's tuition at a private school. Respondents cross-appeal from that part of the hearing officer's decision which reduced their tuition reimbursement award. The appeal must be sustained. The cross-appeal must be dismissed.

        The student was ten years old and in the fifth grade at Woodstock Day School (Woodstock Day) when the hearing began in October 2001. Woodstock Day has not been approved by the New York State Education Department as a school with which school districts may contract to instruct students with disabilities. The student has a history of an unidentified neurological disorder which affects his muscle tone (Exhibits 25, N, V). He exhibits significant gross and fine motor delays, as well as balance and coordination deficits, which affect his performance in physical education and his handwriting (Exhibits 20, 21). He also has sensory processing and integration difficulties (Exhibits 20, 25). Socially, the student exhibits signs of low self-esteem related to his physical deficits, and is described as immature in social interactions with peers (Exhibit 25; Transcript p. 336). Additionally, an evaluation conducted in 1998 revealed that the student exhibited moderate to severe symptoms of an attention deficit hyperactivity disorder (ADHD) (Exhibit KK). Trials of various medications were unsuccessful, and the ADHD diagnosis was reportedly ruled out (Exhibit 13). Subsequently, in May 2000, the student was diagnosed as having Tourette's syndrome, which is most obviously manifested by facial grimaces (Exhibits M, V; Transcript p. 124). Test results place the student in the high average range of intellectual functioning, and at or near grade level performance in all areas with the exception of written expression, which is below grade level (Exhibits 5, 25).

        The child was first referred to petitioner's CSE in August 1998 before beginning the second grade (Exhibit AA). The CSE met in October 1998 to consider the results of various evaluations, including physical and occupational therapy evaluations (Exhibit 2). The CSE considered the fact that the student had exhibited moderate to severe symptoms of ADHD earlier in the year, but it determined that the student did not meet the criteria for classification as a child with a disability. However, the CSE recommended that an accommodation plan pursuant to Section 504 of the Rehabilitation Act of 1973 (Section 504) be developed to address the student's symptoms of ADHD and his motor deficits. It also recommended that the student be referred to the school social worker for inclusion in a social skills building group to address the student's low self-esteem related to his gross and fine motor deficits. A Section 504 accommodation plan consistent with the CSE's recommendations was developed for the student for the remainder of the school year (Exhibit 41). In January 1999, the Section 504 accommodation plan was revised to increase physical therapy services (Exhibit 42).

        In August 1999, prior to the beginning of the student's third grade year at petitioner's Grandview Elementary School (Grandview), the student's mother requested a sensory integration evaluation (Transcript p. 608). The occupational therapist who conducted the evaluation reported that the student had an underactive vestibular system (receptors in the inner ear that detect movement of the head in all planes), and an underactive proprioceptive system (receptors in muscles, tendons and joints which provide information regarding the location of body parts in space without visual input) (Exhibit 17). She also identified deficits in the student's ability to process information through his tactile system. Noting that previous interventions had been unsuccessful, the evaluator recommended that occupational therapy be provided by a therapist with training and experience in a sensory integration approach.

        An assistive technology evaluation was conducted on March 6, 2000 because of continued concerns regarding the student's difficulties with the act of handwriting (Exhibit 14). Additional concerns were raised related to the organizational activities which are impacted by the student's motor difficulties. The evaluator indicated that the student was not at risk academically, and that his needs would probably be met through a Section 504 accommodation plan. She made several suggestions to be included in the student's accommodation plan. She also recommended a software program which uses graphic organizers to address the student's organizational difficulties. The student's Section 504 plan was developed in March 2000, and was effective through the end of the school year (Exhibit 43)

        In August 2000, the student's mother requested a CSE meeting (Exhibit BB). The CSE referred the student for a speech/language evaluation in the fall of his fourth grade year at Grandview (Exhibit 11). The evaluator concluded that therapy was not warranted. The CSE convened October 17, 2000 (Exhibit 4). It determined that the student did not meet the criteria for classification as a child with a disability, and agreed to recommend that he be referred to the Section 504 Committee at Grandview. A Section 504 accommodation plan was developed on October 27, 2000 to address the student's motor delays (Exhibit 44). On January 10, 2001, petitioner approved the student's Section 504 accommodation plan, which included a referral for a neuropsychological evaluation (Exhibit R). The neuropsychological evaluation was conducted in March 2001, but the report of such evaluation was not completed until June 29, 2001 (Exhibits 25, WW). There is no indication in the record that petitioner was responsible for the private evaluator's delay in completing the report.

        In a letter dated April 11, 2001, the student's mother advised petitioner's director of pupil services that her son was being harassed and intimidated by his peers (Exhibit SS). She also indicated that certain services in her son's accommodation plan had not been implemented, and requested that such services be provided. On May 16, 2001, respondents were advised that their son's Section 504 accommodation plan would be reviewed the following month (Exhibit UU). On June 18, 2001, a Section 504 accommodation plan was developed for the student for the 2001-02 school year (Exhibit 45).

        The district received the private neuropsychologist's report on July 26, 2001 (Transcript p. 44). The report was reviewed at a meeting attended by petitioner's director of pupil services, the school principal, the school social worker, the parents and the independent evaluator on August 13, 2001. At the end of the meeting, the parents requested a CSE meeting to review the evaluation (Exhibit WW; Transcript pp. 719, 724).

        Approximately one week later, on August 20, 2001, respondents informed petitioner that they were enrolling their son at Woodstock Day, and they requested an impartial hearing to require the CSE to classify their son as a child with a disability under the Individuals with Disabilities Education Act (IDEA) and to obtain an award of tuition reimbursement for the 2001-02 school year under the IDEA (Exhibit 1). Prior to the commencement of the hearing, the parties mutually requested that the hearing be postponed to allow the CSE to review the neuropsychological evaluation (Transcript p. 3). The CSE met on October 4, 2001 and determined that the student did not meet the criteria for classification as a child with a disability (Exhibit 4).

        The hearing began on October 30, 2001, and concluded on May 13, 2002. The hearing officer rendered his decision on May 28, 2002. He found that the district had failed to meet its burden of proof on the issue of classification because of various procedural violations. He further found that the student should have been classified as other health impaired during the 2000-01 school year. The hearing officer also found that the parents met their burden of proving that Woodstock Day was appropriate, although he characterized the proof as marginal. In balancing the equities, the hearing officer found that tuition reimbursement should be reduced by 25 percent, noting that the student was capable of learning in the regular education setting, and most likely in the school district.

        A board of education bears the burden of establishing the appropriateness of a CSE's recommendation that a student not be classified as a child with a disability (Application of a Child Suspected of Having a Disability, Appeal No. 94-42; Application of a Child Suspected of Having a Disability, Appeal No. 94-41; Application of a Child Suspected of Having a Disability, Appeal No. 94-36; Application of a Child Suspected of Having a Disability, Appeal No. 94-18).

        The hearing officer found that petitioner failed to meet its burden of establishing the appropriateness of its CSE's recommendation not to classify the student because alleged procedural delays in the CSE process, as well as delays in authorizing the independent evaluation, prevented the parents from making appropriate plans for their son's education during the summer of 2001 and the 2001-02 school year. In reaching his decision, the hearing officer determined that the April 11, 2001 letter from respondents to petitioner's director of pupil services was a referral to the CSE, and that the August 13, 2001 meeting at which the neuropsychological evaluation was reviewed was a CSE meeting. The record does not support these findings.

        When petitioner's CSE met in October 2000, it determined that the student did not meet the criteria for classification. The CSE recommended that he be referred to the school's Section 504 Committee and an accommodation plan was developed later that month. The parents did not challenge the CSE's recommendation not to classify their son at any time during that school year. In fact, the mother's April 11, 2001 letter requested that the Section 504 accommodation plan be implemented. In essence, she complained of alleged harassment and intimidation of her son by his peers, and she sought to have a disability awareness day scheduled immediately, referring to a provision of her son's Section 504 accommodation plan. She indicated that if "these accommodations are not met, I will consider filing a systems complaint with the U.S. Office of Civil Rights" (Exhibit SS). There is nothing in the April 11, 2001 letter to suggest that it also was intended to serve as a referral to petitioner's CSE.

        Similarly, there is nothing in the record suggesting that the August 13, 2001 meeting was a CSE meeting. The record shows that the meeting was convened to review the results of the private neuropsychological evaluation (Transcript pp. 714, 718-19). Moreover, neither the student's mother nor her consultant regarded the meeting as a CSE meeting (Exhibit WW; Transcript p. 802). In fact, the record shows that at the end of the August 13, 2002 meeting, the parents requested a CSE meeting (Exhibit WW; Transcript pp. 719, 724).

        Additionally, the procedural violations found by the hearing officer are not supported by the record. The record shows that by the end of the 2000-01 school year, a decision had been made to provide Section 504 accommodations to the student for the 2001-02 school year. The accommodation plan was developed in June 2001, well before the commencement of the 2001-02 school year. On August 20, 2001, when the parents requested a CSE meeting, their son was not classified as a child with a disability. Therefore, the August 13 referral to the CSE was an initial referral, and petitioner was required to follow the procedures for referral, evaluation and eligibility determination set forth in 8 NYCRR 200.4. The parents were advised that evaluations would have to be conducted and a meeting would be scheduled in the fall (Exhibit WW). The CSE meeting was initially scheduled for September 24, 2001, and the parents were provided notice of the meeting on September 10, 2001 (Exhibit YY). However, approximately one week after the parents requested a CSE meeting, they advised the CSE of their decision to unilaterally place their son at Woodstock Day and requested a hearing.

        The student was not classified as a child with a disability prior to the 2001-02 school year, therefore, petitioner was not obligated to have an individualized education program (IEP) in place at the beginning of the school year as required by 34 C.F.R. § 300.342(a). With respect to the assertion that there were delays in the process, petitioner scheduled a CSE meeting approximately one month after the referral was made. Pursuant to federal regulation, petitioner must ensure that a student be evaluated within a reasonable period of time following receipt of parental consent to an evaluation, and, if the child is determined to be eligible for services, an IEP meeting must be conducted within 30 days of that determination (34 C.F.R. § 300.343[a] and [b]). The scheduling of a CSE meeting one month after a referral is made does not constitute an unreasonable period of time.

        While the record does not support the procedural violations found by the hearing officer which led to his conclusion that the student should have been classified as other health impaired during the 2001-02 school year, the question remains whether the student meets the classification criteria. The federal regulatory definition of other health impairment reads as follows:

Other health impairment means having limited strength, vitality or alertness, including a heightened alertness to environmental stimuli, that results in limited alertness with respect to the educational environment, that –

(i) Is due to chronic or acute health problems such as asthma, attention deficit disorder or attention deficit hyperactivity disorder, diabetes, epilepsy, a heart condition, hemophilia, lead poisoning, leukemia, nephritis, rheumatic fever, and sickle cell anemia; and

(ii) Adversely affects a child's educational performance.

(34 C.F.R. § 300.7[c][9]).

        The state regulatory definition for other health impairment is:

[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 Board of Education argues that despite the student's disabilities, he has demonstrated academic progress commensurate with his ability. Respondents contend that their son's most significant impairment is his social functioning (Transcript p. 9). They argue that he has difficulty understanding social cues and developing friendships, and that he requires social skills training and other services.

        The student's fourth grade teacher, who had 30 years of teaching experience, described the student's manifestations of Tourette's syndrome as grimaces and occasional upper body tics, which were less apparent as the school year progressed (Transcript pp. 194-95). She stated that the student was welcome to move around the room when needed, and that he would do so a couple of times per day (Transcript p. 194). The fourth grade teacher further testified that while the student was distractible, his distractibility was fairly normal for a fourth grader (Transcript p. 215). With respect to the student's social functioning, the teacher testified that the student was somewhat of a loner, but that he had established two friendships over the course of the year at two different times (Transcript pp. 191, 199). The teacher also testified that she did not observe other children teasing or bullying the student (Transcript p. 200). She stated that the student never complained to her about being teased or bullied, and that the student's mother brought incidents to her attention once or twice over the course of the school year (Transcript p. 200). She did recall an incident of name calling early in the school year which, she explained, was addressed by moving the student (Transcript p. 207).

        The student's teacher described the student as a hard worker academically (Transcript p. 191). She indicated that his performance was above average, though she did note that the physical act of writing was difficult for him (Transcript p. 198). She also testified that he participated with other students in small group activities (Transcript p. 200). The teacher indicated that the student received occupational therapy, physical therapy and counseling, and that the occupational therapist and physical therapist advised her of strategies to use in the classroom (Transcript p. 196). She described how the Section 504 accommodations were being provided, and she opined that the accommodations were sufficient to meet the student's needs (Transcript pp. 192, 201, 203). The student's report card for the 2000-01 school year shows that his performance was generally in the satisfactory range and he achieved As and Bs on tests throughout the year (Exhibit 39).

        One of petitioner's special education teachers who served as a consultant teacher for two hours per day in the student's third grade class and for one hour per day in the student's fourth grade class testified that the student manifested symptoms of Tourette's syndrome with facial grimaces (Transcript p. 149). She indicated that she never noticed any children making fun of the student because of his Tourette's type behavior (Transcript p. 151). The special education teacher stated that the student appeared distracted quite often, but did not require redirection because he always knew what was being asked of him (Transcript pp. 146-47). She testified that the student had developed a friendship with a new student, and that the friendship appeared to continue throughout the school year (Transcript p. 178).

        The special education teacher described the student's classroom performance as above average in third grade, and indicated that he did not require extra help in fourth grade (Transcript p. 145). She explained the results of tests she had administered in October 2000 (Exhibit 7; Transcript pp. 152-53). The student performed at grade level in math and spelling, and on an informal evaluation of written expression he scored at a level 3, which the special education teacher indicated corresponded to a B to B-. She also testified that the student met state standards on both the New York State Grade 4 English Language Arts and Mathematics tests (Transcript pp. 156-57). The special education teacher testified that the student's grimaces and fidgetiness did not affect his academics (Transcript p. 181). She opined that the student did not require any kind of special education services (Transcript p. 161). The student's occupational therapist reported that the student's sensory processing deficits were being successfully managed with the accommodations (Exhibit 27). She noted that although deficits were present, they did not significantly impact the student's academic performance.

        One of the school district's social workers testified that she provided counseling to the child beginning in December 2000 (Transcript p. 322). She indicated that the purpose of counseling was to work on social skills training, such as sportsmanship, communication skills and friend-making skills (Transcript p. 323). During her sessions with the student, she would notice his facial grimace (Transcript p. 328). She indicated that his hands very often were in motion, but there were no big movements. The school social worker further indicated that the student was socially immature and had low self-esteem (Transcript pp. 328, 324). She testified that the student did not complain to her about being bullied or harassed (Transcript p. 325). She further testified that the student's mother had advised her that from time to time other students were calling her son names. The social worker indicated that she never observed the name calling at school (Transcript p. 343). She opined that the student's social needs could be addressed through regular education counseling such as through the services she had been providing (Transcript p. 333).

        The record also shows that the private neuropychologist who evaluated the student acknowledged that academically, the student was performing fine (Transcript pp. 425-26). The parents' consultant testified that the student was progressing tremendously at school (Transcript p. 637). However, they both expressed concerns about the student's social functioning and recommended that he required an environment where he would feel comfortable, and not feel the need to suppress his symptoms of Tourette's for fear of being ridiculed (Transcript pp. 428-29, 729).

        While there is support in the record to show that the student has social and motor deficits, there is no evidence to show that such deficits adversely affected the student's educational performance as required by 8 NYCRR 200.1(zz)(10) or 34 C.F.R. § 300.7(c)(9)(ii) for classification as having an other health impairment. The record does not afford a basis for classifying the student as a child with a disability under any of the definitions of that term in federal or state regulation. Consequently, the hearing officer's decision to classify the student as other health impaired is not supported by the record.

        A board of education must also demonstrate what, if any, attempts have been made to remediate a student's performance prior to classifying him as a child with a disability (Application of a Child Suspected of Having a Disability, Appeal No. 94-1; Application of a Child Suspected of Having a Handicapping Condition, Appeal No. 92-17; Application of a Child Suspected of Having a Handicapping Condition, Appeal No. 91-33). The record shows that the school district attempted to remediate the child's performance. It provided Section 504 accommodation plans for the student since he was in the second grade (Exhibits 41-45). It consented to and reviewed additional evaluations of the student, including sensory integration, asssistive technology and neuropsychological evaluations, and incorporated various recommendations from the evaluations into the student's Section 504 accommodation plans.

        Petitioner met its burden of demonstrating the attempts it made to remediate the student's performance and of establishing the appropriateness of its CSE's recommendation not to classify the student as a child with a disability. As the student does not meet the criteria for classification as a child with a disability under the IDEA or its state counterpart Article 89 of the Education Law, he is not entitled to the remedies available under the Act. Therefore, respondents are not eligible for an award of tuition reimbursement. Consequently, respondents' cross-appeal challenging the hearing officer's decision to award partial reimbursement need not be addressed.

THE APPEAL IS SUSTAINED.

THE CROSS-APPEAL IS DISMISSED.

IT IS ORDERED that the hearing officer's decision be annulled.