Application of a CHILD SUSPECTED OF HAVING A DISABILITY, by his parent, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the City School District of the City of New York
Neal Howard Rosenberg, Esq., attorney for petitioner
Hon. Michael A. Cardozo, Corporation Counsel, attorney for respondent, Emily Sweet, Esq, of counsel
Petitioner appeals from the decision of an impartial hearing officer upholding the determination of respondent’s Committee on Special Education (CSE) that petitioner’s son was not entitled to special education services for the 2002-03 school year, and denying petitioner’s request for reimbursement for special education services she unilaterally obtained for her son during that year. The appeal must be dismissed.
The impartial hearing in this matter commenced in February 2003. At that time, petitioner’s son was 12 years old and attending seventh grade at the Columbia Grammar and Preparatory School ("Columbia"). Columbia is a competitive private school with a demanding academic program (Exhibits 14; Transcript pp. 10, 108). It has not been approved by the New York State Education Department to provide education to children with disabilities. The student has attended Columbia since second grade. He has never attended a New York City public school, and has never been classified with any disability requiring special education services.
Throughout second, third and fourth grades the student received support services from a reading specialist in small group setting (Transcript p. 77). The record does not indicate whether, aside from Columbia’s general tuition, there was any additional charge for these services. The student received passing marks and progressed from grade to grade.
In fifth grade the student’s classes became departmentalized and he exhibited difficulty with organization (Transcript p. 78). Petitioner testified that her son was forgetting homework assignments and classroom materials, that his writing was scattered and his grammar was sloppy, and that his math skills were weak (Transcript p. 120). The record suggests that Columbia continued to provide support from the reading specialist in fifth grade.
At the conclusion of the 2000-01 (fifth grade) school year, petitioner had her son evaluated by a psychologist at the Rusk Institute of Rehabilitation due to her concerns with the student’s academic achievement, attention and anxiety (Exhibit 6). As assessed by the Weschler Intelligence Scales for Children – Third Edition (WISC-III) the student demonstrated a significant discrepancy between his Verbal IQ score (117) and his Performance IQ score (84). This discrepancy was consistent with previous testing. The student’s sub-test scores suggested difficulty with social comprehension, as well as difficulty with tasks that required the ability to integrate visual stimuli, reason non-verbally and apply visual-spatial and visual motor skills. The student reportedly struggled with organization and sustained attention. As measured by the Weschler Individual Achievement Test - Second Edition (WIAT-II), the student demonstrated math skills at a seventh grade level while his writing skills were at a fourth grade level.
In addition to WISC-III and WIAT-II the Rusk examiner conducted neuropsychological testing (NEPSY) and projective testing (Rorschach, Thematic Apperception Test) as well as assessments of visual motor (Wide Range Assessment of Visual Motor Disabilities), memory (Wide Range Assessment of Memory and Learning), and attending skills (Connor’s Continual Performance Test-Second Edition).
The Rusk examiner described petitioner’s son as anxious and noted that he did not possess good resources for dealing with frustration. He concluded that the student was of average to above average cognitive potential, and that he was performing academically in the average range. The examiner opined that this was less than expected given the student’s cognitive potential.
The Rusk examiner recommended that Columbia provide petitioner’s son with extra structure and support in a discreet manner, so as not to worsen the student’s low self-esteem. He suggested the use of a daily planner for organization, a word processor for writing and spelling, extra time for exams and assignments and psychotherapy to address anxiety and coping skills. He also recommended that the student participate in a social skills group.
During sixth grade petitioner’s son received support from a Columbia learning specialist, either once (Transcript p. 119) or twice (Transcript p. 78) per week. The learning specialist assisted him with both reading and organization.
The student’s sixth grade report card revealed grades of good, very good and excellent in his core academic subjects with the exception of math and geography where some skills, including organization, were rated as fair (Exhibit 8). The student’s teachers all noted that he had made good progress. Although some commented on his difficulty following instructions and remaining focused, they reported substantial improvements when the student had access to individualized attention. At the impartial hearing petitioner testified that Columbia tends to be "nurturing" in its grade reports (Transcript pp. 118, 129). There is nothing in the record, however, to suggest that the student’s report card was inaccurate or incomplete.
At various points throughout his fifth and sixth grade years (Transcript p. 116) petitioner and Columbia staff discussed the merits of enrolling the student in Columbia’s special education component known as the Learning Resource Center (LRC). By the end of the 2001-2002 (sixth grade) school year petitioner had apparently decided to enroll her son in the LRC (Transcript p. 116). The cost of LRC services for petitioner’s son, in addition to Columbia’s regular tuition, was an extra $9,750 for the 2002-03 school year (Exhibit B). Petitioner paid $2,750 of this sum at some point prior to July 2002 (Exhibit B). By check dated July 31, 2002 she tendered an installment of $3,500; she paid the final installment of $3,500 on December 9, 2002 (Exhibit C).
By letter dated August 6, 2002 (having already paid more than 64 percent of LRC tuition for the year) petitioner referred her son to respondent’s CSE, requesting an evaluation of the student’s need and eligibility for special education services (Exhibit A). Although the student had not been classified with any disability requiring special education, he began attending the LRC in September 2002, at the commencement of the 2002-03 (seventh grade) school year.
The CSE met on October 8, 2002. In attendance were the student’s parents, a school social worker (who served in that capacity and, as well, as the district representative), a general education teacher, an education evaluator, a school psychologist and the CSE’s parent member. The director of Columbia’s LRC (director), a special education teacher, participated in the CSE meeting telephonically.
The CSE considered the following materials: a social history conducted on September 19, 2002 (Exhibit 4); a classroom observation conducted on September 27, 2002 (Exhibit 5); the Rusk examiner’s psychological evaluation from 2001 (Exhibit 6); a psychological evaluation conducted by the school psychologist on September 19, 2002 (Exhibit 7); the student’s sixth grade report card (Exhibit 8); an educational evaluation conducted on September 19, 2002 (Exhibit 9); and a physical examination report dated September 16, 2002 (Exhibit 11). The CSE also considered a "Cognitive Ability-Academic Achievement Discrepancy Table" (CAAADT) based upon results from the school psychologist’s evaluation (Exhibit 3). The school psychologist testified that he prepared the CAAADT moments before the CSE meeting (Transcript p. 31).
The social history revealed petitioner’s concern with her son’s organization, writing and attention (Exhibit 4). She reported that his handwriting was poor and that he had difficulty with spelling and grammar. Petitioner described the student’s attention as variable depending on the subject. According to petitioner, the student worked with a private therapist during fourth and fifth grades on balance and visual perceptual skills as well as anxiety and attentional deficits. Petitioner described her son as socially immature.
The public school social worker observed petitioner’s son for 45 minutes in Columbia’s "Writing Center" (Exhibit 5). She reported that the student seemed focused on the assignment, cooperative and able to concentrate even while other students were talking. She noted several instances in which the student requested assistance from the teacher; when the teacher was unavailable the student asked the student next to him for assistance.
The district’s psychological evaluation (Exhibit 7) did not include IQ testing as the psychologist chose to rely on the scores obtained by the Rusk evaluator a year earlier (Transcript p. 28). Projective testing indicated that the student was anxious during testing and experienced anxiety in relation to his schoolwork. He was otherwise described as reality based with age appropriate interests and concerns. According to the school psychologist the results of the Bender Visual Motor Gestalt Test suggested that petitioner’s son possessed age appropriate visual/fine-motor development and visual short-term memory.
The educational evaluator administered the Woodcock Johnson III (WJ-III). Petitioner’s son scored in the average range on two subtests (passage comprehension and spelling), the high average range on four subtests (letter word identification, calculation, math fluency and applied problems) and the superior range on two subtests (reading fluency and writing samples). Broad Reading skills were in the superior range and Broad Math in the high average range. The student was described as friendly, cooperative and well mannered.
The physical examination report indicated that petitioner’s son was healthy with no medical or physical limitations.
The CSE determined that petitioner’s son was not eligible for classification or special education services (Exhibits 1, 3, 10). In the CSE’s view, standardized tests, as well as school reports, confirmed that the student's educational performance was not adversely impacted, and that he had academic skills at grade level and the ability to receive passing grades in a regular education setting (Exhibit 2). The CSE then adopted an individualized education program (IEP) classifying the student as non-handicapped and recommending placement in regular education (Exhibit 1).
On November 1, 2002 petitioner requested an impartial hearing seeking reimbursement for LRC tuition for the 2002-03 school year on grounds that the IEP was procedurally invalid and that the CSE’s determinations regarding classification and placement were substantively inappropriate. An impartial hearing took place on February 26, 2003 and May 21, 2003. The hearing officer issued his decision on July 7, 2003 upholding the CSE’s determinations and denying tuition reimbursement. This appeal ensued.
Petitioner asks me to vacate the portion of the hearing officer’s decision denying reimbursement for the LRC, and to award such reimbursement. Petitioner fails to advance specific legal arguments in support of her position; the petition herein simply alleges that the hearing officer’s decision was "adverse" to petitioner. I recognize my obligation to examine the entire record (34 C.F.R. § 300.510[b][i]), and to make an independent decision (20 U.S.C. §1415[g]). However, an appeal to the State Review Officer should not be viewed simply as a "second bite of the apple." The primary objective on appeal is to conduct an impartial review of the hearing and to ensure that the procedures at the hearing were consistent with the requirements of due process (34 C.F.R. § 300.510[b][ii]).
Tuition reimbursement is a remedy for the denial of a free appropriate public education (FAPE). FAPE extends only to students who meet the criteria for identification as children with disabilities under the Individuals with Disabilities Education Act (IDEA) (20 USC §1400 et seq.) and Article 89 of the New York Education Law (Application of a Child Suspected of Having a Disability, Appeal No.01-107; Application of the Bd. of Educ., Appeal No. 01-058). Consequently, the central issue on this appeal is whether petitioner’s son was eligible for classification as a child with a disability during the 2002-03 school year (Application of a Child Suspected of Having a Disability, Appeal No. 00-001). Unless the student was eligible for classification, petitioner cannot assert a claim for tuition reimbursement.
Respondent bears the burden of establishing the appropriateness of the CSE's recommendation that a child not be classified as a child with a disability ((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; Application of a Child with a Disability, Appeal No. 99-049; Application of a Child Suspected of Having a Disability, Appeal No. 94-36; Application of a Child Suspected of Having a Disability, Appeal No. 94-41; Application of a Child Suspected of Having a Disability, Appeal No. 94-42; Application of a Child Suspected of Having a Disability, Appeal No. 93-18).
Petitioner raises four procedural objections to the CSE’s determination. First, she contends that the school psychologist’s evaluation was "minimally conducted" and "unacceptable," apparently because the psychologist chose to rely on the Rusk evaluator’s reports rather than administering certain tests again. Petitioner further asserts, as a separate challenge to the determination, that the CSE should have consulted with the Rusk evaluator himself, rather than simply relying upon his reports. I find both objections to be without merit.
The school psychologist’s evaluation consisted of projective testing and an assessment of perceptual motor skills. He noted that in addition to his own evaluation he considered the results of IQ and other tests conducted in July 2001 by the Rusk evaluator. He opined that additional IQ testing was not necessary, as cognitive function is considered to be a stable construct (Transcript p. 28). The school psychologist determined that the student possessed age appropriate visual/fine motor development and visual memory (Transcript p. 26). In addition he found the student to be "reality based" and indicated that he expressed age appropriate interests and concerns. He noted that petitioner’s son was anxious and felt pressured that he was not meeting others’ expectations.
A CSE must adequately evaluate a student to identify the nature and extent of the child’s disability, so that it can ascertain how the disability affects the student’s involvement and progress in the regular education curriculum and prepare a program that will address the student’s educational needs (Application of a Child with a Disability, Appeal No. 01-028). The initial evaluation of student suspected of having a disability must include a physical examination, an individual psychological evaluation or a written report from a psychologist indicating that further evaluation is unnecessary, a social history, an observation of the student in the current educational placement, and such other assessments or evaluations as are necessary to make an appropriate recommendation (8 NYCRR 200.4[b]; Application of the Board of Educ., Appeal No. 02-008). When a CSE has access to the requisite evaluations, it may rely on that information, rather than obtaining all new evaluations, in formulating its recommendations (Application of the Board of Educ., Appeal No. 02-008).
Taken together, the Rusk evaluator’s and the school psychologist’s reports present a comprehensive picture of the student’s aptitude, achievement, memory, attention and social/emotional functioning. I find, therefore, that reliance upon the Rusk evaluator’s reports was proper; that the psychological evaluation was sufficient; and that the CSE properly considered all other requisite evaluations. Petitioner cites no legal precedent for the proposition that the CSE should have consulted personally with the Rusk evaluator. I have considered petitioner’s contention, nonetheless, and find it to be without merit (Application of a Child with a Disability, Appeal No. 94-42; 34 C.F.R. § 300.533; 8 NYCRR 200.4[b][i]).
Petitioner asserts that the school social worker’s classroom observation did not properly allow for the student’s alleged attentional deficits to manifest themselves. The observation report indicates, however, that despite the ongoing presence of distractions in the room, petitioner’s son was able to remain focused. It was reasonable for the CSE to conclude that if the student suffered from serious attention deficit issues, as petitioner alleges, he would have become distracted in that environment. I find that the classroom observation was adequate and appropriate. The record before me, moreover, contains no evidence that petitioner’s son has ever been diagnosed with an attention-related disability.
Finally, petitioner contends that the CSE’s determination should be annulled because the director and a proponent of classifying the student participated in the meeting by telephone and did not have before her either the CAAADT (Exhibit 3) or the Specific Learning Disability Justification Form (SLDJF) (Exhibit 10).
A June 1992 State Education Department field memo entitled, The Use of Teleconferencing to Ensure Participation in Meetings to Develop the Individualized Education Program (I.E.P.), provides, in pertinent part, that: "…individuals who participate through teleconferencing must have access to the same material available to all others involved in this process…." This field memo does not have the force and effect of a regulation (Application of a Child with a Disability, Appeal No. 00-043). Nonetheless, I find that it is consistent with the policies underlying the IDEA and Article 89 of the Education Law. The preparation of a student’s IEP by an informed multidisciplinary team is at the heart of both statutes (id.).
It is undisputed that the director had neither the CAAADT nor the SLDJF before her during the meeting. Therefore she did not have "the same material" as all other members of the CSE. It is well established, however, that the existence of a procedural flaw in the formulation of a student’s IEP does not automatically require a finding of a denial of FAPE (Application of a Child with a Disability, Appeal No. 02-015). Rather, a denial of FAPE occurs only if the procedural violation results in a loss of educational opportunity for the child or seriously infringes upon the parent’s opportunity to participate in the process of formulating the IEP (id.).
In this case, the SLDJF is a summary of the CSE’s conclusions and determination that could not, by definition, have been provided in advance because it did not exist until the CSE’s deliberations had concluded. A note on the SLDJF states, however, "if a team member disagrees with the decisions reflected in the report he/she must submit a separate statement presenting his/her reasons." The director's testimony at the hearing indicates that she did, in fact, disagree with the decisions reflected in the SLDJF – yet the record does not contain a separate statement and I must infer that the hearing officer did not have such a statement before him. Although this does constitute a procedural irregularity, there is no indication in the record that either the CSE’s or the hearing officer’s determination would have been any different, had the director prepared a dissenting statement.
Respondent argues that not having the CAAADT was procedurally irrelevant because the data it contained was merely cumulative of the data set forth in the school psychologist’s report. While part of that information was cumulative, the analysis of the scores was not. The CAAADT thus contained important information for all CSE participants to consider. As with the SLDJF, though, the fact that she did not have the CAAADT does not appear to have affected the outcome of the CSE meeting. Like the SLDJF, moreover, respondent could not have provided the CAAADT to the director in advance, because the school psychologist compiled it just moments before the CSE meeting.
The director participated fully and actively throughout the CSE meeting (Transcript pp. 41-42, 47-48, 92-96) and she also testified at the impartial hearing. Although she did not have the CAAADT before her, she fully participated in related discussions. She had every opportunity to (and did in fact) express her views to the CSE, and petitioner had every opportunity to (and did in fact) solicit her testimony for the hearing officer. She was aware of the student's educational needs and participated fully in the review of these needs. On this record, therefore, I am unable to conclude that these procedural irregularities in any way resulted in a loss of educational opportunity for the student or seriously infringed upon petitioner’s opportunity to participate in the process of formulating the IEP.
Both Federal (34 C.F.R. § 300.7[a]) and State (8 NYCRR 200.1[zz]) regulations provide that, in order to be classified as a child with a disability, a student must not only have a specific physical, mental or emotional condition, but such condition must adversely impact upon a student’s educational performance to the extent that he or she requires special services and programs (Application of a Child Suspected of Having a Disability, Appeal No. 01-107; Application of a Child Suspected of Having a Disability, Appeal No. 94-42; Application of a Child Suspected of Having a Disability, Appeal No. 94-36). After reviewing this record I am unable to find that petitioner’s son required special education. Therefore, I must uphold the hearing officer’s determination that the student was not eligible for classification as a child with a disability, and that petitioner was not entitled to an award of tuition reimbursement.
I note that petitioner’s son displays weaknesses in several skill areas and may need additional support to be successful in school, particularly as he progresses into higher grades and encounters increasingly complex material and academic demands. Although I cannot conclude that the student’s deficits at the time of the CSE meeting were severe enough to qualify him for special education services, I encourage continued monitoring of this student.
THE APPEAL IS DISMISSED.