02-085

        Petitioner appeals from an impartial hearing officer's determination that his daughter, who has been diagnosed with a mild Asperger's disorder, should be placed in a self-contained special education classroom, rather than provided with home instruction, as he requests, and that she should receive a comprehensive independent evaluation. Respondent cross-appeals from the hearing officer's determination that the student should be classified as autistic and that the district should pay for an independent evaluation. The appeal must be dismissed. The cross-appeal must be sustained in part.

        As a preliminary matter, respondent claims that petitioner filed his notice of intention to seek review and verified petition in an untimely manner. Petitioner received the hearing officer's decision on or about June 22, 2002, but did not serve the petition until September 3, 2002, nearly a month after the regulatory deadline (8 NYCRR 279.2[b]). However, the State Review Officer may excuse a delay in commencing an appeal for good cause shown, provided the reasons for the delay are set forth in the petition (Application of a Child with a Disability, Appeal No. 97-18; 8 NYCRR 275.16, 279.1[a]). In his petition, the student's father explained that service of the petition was delayed due to a death in the family during the month after he received the hearing officer's decision. I will therefore excuse the delay in this case (Application of the Bd. of Educ. of the Wappingers Cent. Sch. Dist., Appeal No. 00-034).

        This appeal involves a disagreement as to whether the student, who was diagnosed with mild, high functioning Asperger's disorder in 1999, meets the eligibility criteria of a student with a disability for purposes of receiving special educational services under the Individuals with Disabilities Education Act (IDEA). The student was 11 years old and receiving one hour of home instruction per day when the hearing began on March 18, 2002. She had been receiving accommodations since 1999 under a plan developed pursuant to Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. § 794) (Section 504 Plan). However, the Committee on Special Education (CSE) had determined at meetings on August 16, 1999, August 7, 2000, and October 18, 2001, the meeting at issue in this appeal, that the student was not eligible to be classified as a child with a disability under the IDEA. Her classification is in dispute. For purposes of clarification, a review of the student's educational history will be discussed.

        Respondent's CSE initially classified petitioner's daughter as speech impaired (SI), and placed her in a special program for children with speech disorders for kindergarten and first grade during the 1995-96 and 1996-97 school years (District Exhibits 4E, 4H, 3G; Transcript pp. 15-16). In doing so, the CSE found her eligible for special education services under the IDEA. She repeated first grade in 1997-98 due to behavioral and social difficulties (Parent Exhibit A). In May 1998, based on a finding that her language and academic skills were developing at or above an age appropriate level, the CSE determined that she no longer required special education services and she was declassified (8 NYCRR 200.4[d][1][iii]; Transcript pp. 193-94; District Exhibit 4A). She was placed in a regular second grade classroom during the 1998-99 school year (Transcript p. 195).

        Reports by the student's second grade teacher indicate that she had poor attendance and difficulty with change, and that she needed to improve her socialization with peers. Per a request by her mother, the student ate alone and did not participate in group activities (Parent Exhibit 8). The same teacher reported, however, that the student learned well in large and small groups, did well academically, related well to adults and needed little supervision (Parent Exhibit 8). In May 1999, the student's mother suspected that her daughter might have Asperger's disorder, and referred her to the Genesee Developmental Unit (GDU) at the Genesee Hospital for an evaluation (Parent Exhibit 10).

        In June 1999, the student underwent communication, psychological, educational and medical assessments by GDU's developmental team. The GDU communication assessment indicated that despite a good vocabulary, the student had difficulty sharing information and interpreting language in social situations and had mildly impaired active working memory skills. The educational evaluator noted that the student's academic skills were developed well beyond grade level expectations and that the student expressed confidence in her academic abilities. Yet the student also exhibited high levels of anxiety during the testing, and attempted to leave when she felt overwhelmed. The evaluator concluded that the student would require "highly specialized, individualized programming and management to address significant anxiety which is currently prohibiting her from attending school." She added that the student did not refuse to comply, but that her behavior "would certainly be difficult to manage in the classroom setting." The GDU psychologist concluded that her ability to function within the mainstream was "clearly compromised by her negative and anxiety-based reactions to peer level social demands." He opined that she would need extra assistance to facilitate her adjustment, "but avoidance or withdrawal from these social settings is likely to crystallize and exaggerate her social adjustment difficulties…" (Parent Exhibit A).

        The GDU physician concluded that the student's pattern of difficulties was consistent with a diagnosis of mild high-functioning Asperger's disorder, a condition on the spectrum of pervasive developmental disorders (Parent Exhibit A; Transcript p. 182). He noted as evidence of the disorder her restricted interests, elevated levels of anxiety, limitations in social reciprocity, and rigid style with perseverative characteristics. He further noted that her symptoms were modified by her strong intellectual ability and verbal skills. The report listed as additional diagnoses nonverbal learning disorder and developmental language disorder, and further indicated that she was at risk for anxiety disorder and oppositional defiant disorder. The evaluation recommended that, in order to prevent school phobia, there should be an emphasis on having her attend school regularly, even if she resisted (Parent Exhibit A).

        The student was referred to the CSE by her teacher and parents in June 1999. When the CSE met on August 16, 1999, it determined that she did not meet the IDEA eligibility requirements for classification as a student with a disability because she was functioning well academically (District Exhibit 4B). However, the CSE recommended that a Section 504 Plan be developed at the beginning of the next school year. The Section 504 committee, which met on September 28, 1999, found that the student's Asperger's disorder had a negative impact on her socialization skills and motor functioning, and listed as areas of concern her anxiety and her handwriting. It developed an accommodation plan that provided for reduced written assignments, modified answers to essay questions, a separate test location, the support services of social work intervention and speech-language therapy, transportation in a small vehicle, and a less stimulating eating area (District Exhibit 4I).

        During the 1999-2000 school year, the student received As and Bs on her report card despite frequent absences (District Exhibit 4G). A January 2000 report indicated that her writing samples included well-developed paragraphs and good details and vocabulary, and that she was completing all of her work in the appropriate time frame (District Exhibit 3I, Parent Exhibit 15). The school social worker reported that the student had been participating actively in the social skills building group (District Exhibit 3H). Nonetheless, her parents removed her from school on or about February 13, 2000 (District Exhibit 3G). At the hearing, her father testified that he removed his daughter from school because she had severe anxiety and was "traumatized" by attending school (Transcript pp. 199, 238). The record contains a statement by the student dated February 15, 2000 in which she reports that she did not like her third grade teacher because, among other reasons, the teacher glared at her in an intimidating manner (Parent Exhibit 16). Her statement also indicated that she did not like to be next to other children, that she preferred to do things by herself, and that she only spoke to other children when she did not like what they were doing. The school social worker wrote in a report dated June 22, 2000 that "a conflict" had arisen between the parents and the administration. She explained that the parents thought that their daughter was traumatized by school, and staff felt that she was having a successful school experience (District Exhibit 3H).

        The student's parents met with the speech pathologist and the social worker the next day to discuss their daughter's program, her attendance, and a plan for socialization during lunchtime. The record indicates that her father appeared to agree with the recommendations (District Exhibit 3G). He signed a form permitting the CSE to evaluate his daughter, but limited his consent to a review of existing records, claiming that the 1999 evaluation by GDU was sufficient (Parent Exhibit 21; Transcript pp. 232-33). There are conflicting accounts of attempts by staff to reach the parents by phone between March and June of that year, but the student apparently remained at home without instruction during that time (Transcript pp. 241-48). After initially requesting a 1:1 paraprofessional, the student's father informed the district on May 31, 2000 that he was going to look for a school with an emphasis on art for his daughter (District Exhibit 3H).

        On June 5, 2000, the CSE convened to discuss the student's needs, but concluded that it required additional information from the speech pathologist and social worker and updated achievement testing to assess the effect of her disability on her academic progress (District Exhibit 4C). Although the school district offered home instruction to the student by letter dated June 12, 2000, she did not receive home instruction that summer (Parent Exhibit 16; Transcript pp. 244, 249). The record is unclear as to why she did not receive instruction that summer.

        When the CSE reconvened on August 7, 2000, it reviewed a June 12, 2000 report by her speech pathologist that indicated the student had been doing well in a speech and language pragmatics class, and was participating in group discussions, activities and games (District Exhibit 3G). A report by the school psychologist, who evaluated the student on June 21, 2000, indicated that her reading skills were high average, and her spelling and math skills were within the average range. He attributed a slight decline in her spelling and math skills to her limited attendance at school that year. He opined that she did not require special education services, just speech-language therapy and counseling (District Exhibit 3C). The CSE determined that the student's achievement scores were consistent with her cognitive ability and that her needs could be met in the fourth grade regular education classroom (District Exhibit 4D). It declined to classify her as a student with a disability, but recommended continued implementation of the Section 504 Plan and an assistive technology assessment by the occupational therapist.

        The student's parents requested an impartial hearing to challenge the CSE's failure to classify their daughter as a child with a disability. The student began to receive home instruction from the district in October 2000 and continued to receive home instruction through the 2000-01 school year, during the course of the impartial hearing (Parent Exhibit 16; Transcript pp. 228, 244-50). In an August 2001 decision, the hearing officer remanded the case to the CSE to reconsider whether the student should be classified (Parent Exhibit 14). At the CSE meeting on October 18, 2001, the student's home instruction teacher reported that the student was performing above grade level in reading and language arts and at grade level in other areas. The student grasped information easily, disliked repetitive tasks, and had a tendency to "become antsy" if forced to do such tasks (District Exhibit 2B; Transcript pp. 86, 119). The parent requested continued home instruction through 12th grade. The CSE requested consent to perform additional evaluations, but the parent asked that the CSE perform only a "file review" (Transcript p. 80). Based on the information it had, the CSE concluded that the student was achieving at a rate commensurate with her intellectual ability. It determined that she did not meet the eligibility requirements for classification under the IDEA, but recommended continuation of her Section 504 Plan (District Exhibit 2B; Transcript p. 96).

        On November 26, 2001, the parents wrote to the district requesting mediation, claiming that their daughter should be classified under the IDEA, that she could not function in a mainstream environment, and that she should be allowed to continue home instruction. The district declined mediation,¹ and on January 6, 2002 the parents requested an impartial hearing (District Exhibit 2D). The hearing took place on March 18, and May 20, 2002. In a decision dated June 20, 2002, the hearing officer determined that the student should be classified as a child with autism, and that she should be placed in a 12:1+1 special education classroom. She further determined that an independent multidisciplinary diagnostic evaluation should be conducted at the district's expense. The hearing officer ordered as related services counseling once a week, speech-language therapy twice a week, and social work counseling intervention. She also ordered certain test modifications and additional accommodations, such as a less stimulating eating area and special transportation in a small vehicle.

        Petitioner appeals from the hearing officer's decision to place the student in a self-contained classroom in the school district, and to have her submit to a comprehensive multidisciplinary assessment. He asks that his daughter be provided with continued home instruction, asserting that home instruction is the least restrictive environment (LRE) for her because she is at risk of developing school phobia. He further maintains that she should be permitted to attend a private school once she is ready to transition from home instruction to group instruction. Respondent cross-appeals from the hearing officer's determinations that the student should be classified as autistic and placed in a 12:1+1 special class and that respondent should pay for an independent evaluation. Respondent contends that petitioner's daughter was performing at or above grade level when she attended school, and that neither her speech nor her social/emotional needs were adversely affecting her academic performance in school. Respondent argues that it should not have to pay for an independent evaluation for the student because its own evaluations were adequate.

        It is well settled that a board of education bears the burden of establishing the appropriateness of its CSE's recommendation that a student not be classified as a student with a disability (Application of the Bd. of Educ. of the Catskill Cent. Sch. Dist., Appeal No. 02-066; Application of a Child Suspected of Having a Disability, Appeal No. 00-001). In order to be eligible for a classification as a student with autism, the IDEA requires not only that the student display the characteristic symptoms, but that the condition "adversely affects a student's educational performance" (34 C.F.R. 300.7[c][1][i]; 8 NYCRR 200.1 [zz][1]; J.D. v. Pawlett School Dist., 224 F. 3d 60 [2d Cir. 2000]). In this case, respondent does not seriously dispute the student's diagnosis or that, in some instances, students with Asperger's disorder might be eligible for classification under the IDEA as autistic (Transcript pp. 24-26, 82; Application of a Child With a Disability, Appeal No. 01-034). Respondent questions, however, whether the student's mild Asperger's disorder adversely affects her educational performance.

        Upon reviewing the record, I must agree with the hearing officer that, despite the student's average to above average grades, her condition adversely affects her educational performance. When the student began first grade, her teacher reported that she engaged in impulsive behaviors such as inappropriate licking, touching, and "smashing" stuffed animals together (Parent Exhibit 1). Although the teacher reported that the student's socialization and behavior improved by the end of the year due to the consistency and structure provided, the student's behavior apparently deteriorated at home (Parent Exhibit 8, District Exhibit 4H). Her father testified that she "hated school [and] hated kids." He stated that she was having nightmares, was refusing to get ready for school, and had "enormous tantrums" (Transcript p. 172). He further testified that they had put her on various medications and that in her second year of first grade, she had been on Risperdol, an antipsychotic drug (Transcript pp. 183, 189).

        In second grade, the child's teacher reported that she had poor attendance, difficulty with change, and weak socialization skills (Parent Exhibit 8). Respondent's Section 504 committee addressed the student's special needs by modifying her written assignments and by providing a less stimulating eating area, group counseling and a speech pragmatics skills class (District Exhibits 3G, 4I). However, the student continued to have excessive absences in third grade (District Exhibit 4G). Although her poor attendance did not prevent her from getting good grades, she continued to express severe anxiety at home about going to school (Transcript pp. 199, 238). A report by her fifth grade home tutor indicated that the student was still easily distracted by smells, noises and movement even in a quiet structured environment, and that she had to be frequently redirected by a comment or a touch (District Exhibit 3B). Consistent with her history, the GDU report stated that she would need specialized instruction to address her anxiety as conceptual language and performance demands increased and peer interactions became more important.

        Based on the GDU report, her father's testimony, and written commentary by her teachers, it is clear that the student's problems with peer interaction and her high level of anxiety made it difficult for her to function in the classroom. Given her diagnosis of Asperger's disorder, her history of attentional and social deficits, her weaknesses in language and motor skills, in addition to her inability to attend school and her need for home instruction, I concur with the hearing officer that the student is eligible to be classified under the IDEA because her disability adversely affected her educational performance (Weixel v. Bd. of Educ., 287 F. 3d 138, 150 [2d Cir. 2002]; Corchado v. Bd. of Educ., 86 F. Supp. 2d 168, 176 [W.D.N.Y. 2000]; Application of a Child Suspected of Having a Disability, Appeal No. 02-048; District Exhibit 3B).

        The hearing officer correctly concluded that, based on the GDU report, the student should not have been placed indefinitely on home instruction. The CSE chairperson opined that home instruction is an overly restrictive placement (Transcript pp. 99-100). The director of student support services testified that the CSE would not recommend home instruction indefinitely for any special education student, because it provides no opportunity for socialization (Transcript pp. 26-27). Consistent with that testimony, the 1999 GDU report warns that withdrawal or avoidance of social settings would be likely to crystallize and exaggerate her social adjustment problems (Parent Exhibit A). Petitioner presented no evidence from a doctor or clinician stating that his daughter should not return to school (Transcript pp. 84-87, 223-24). Further, regulations of the Commissioner of Education evince a strong policy of placing students with autism either in resource room or regular education classrooms, where possible (8 NYCRR 200.13[a][5]).

        If it has not already done so, the CSE is directed to reconvene to classify this student as autistic, as directed by the hearing officer. Further, the CSE must reevaluate the student consistent with this decision. I can find no reason to require respondent to pay for an independent evaluation, as there was no proof that its evaluations were or would be inappropriate and no finding by the hearing officer that its evaluations were inadequate (34 C.F.R. §300.502; 8 NYCRR 200.5[g][1]). However, respondent's CSE should include in its evaluation an assessment of the student's attentional deficits, an occupational therapy evaluation, an assistive technology assessment and a psychological evaluation to assist in developing a program that will appropriately meet the student's special educational needs while providing her the opportunity to be educated with her peers.

THE APPEAL IS DISMISSED.

THE CROSS-APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the hearing officer's decision ordering the district to pay for an independent evaluation is annulled; and

IT IS FURTHER ORDERED that, unless the parties otherwise agree, the CSE shall conduct a comprehensive reevaluation of the student, in accordance with the terms of this decision, and following such reevaluation, shall reconvene within 60 days of the date of this decision, at which time it shall classify the student as autistic and recommend an appropriate program in the LRE appropriate to the student's needs.