04-013

            Petitioners appeal from an impartial hearing officer's decision denying their requests for classification of their son as emotionally disturbed and for reimbursement of their son's tuition and expenses at the Family Foundation School (Family Foundation) during the 2003-04 school year.  The appeal must be dismissed.

            When the impartial hearing began in October 2003, petitioners' son was in the eleventh grade at Family Foundation.  Although he has generally maintained a B average, the student has had a history of problematic behavior (Exhibits 10, 22).  In kindergarten, he exhibited unusual impulsiveness, problems paying attention, and difficulty following directions (Exhibit 22).  During middle school, the student was suspended one time for fighting (Exhibit 32) and several times for "being disrespectful to teachers" (Exhibit 12).  In eighth grade, the student was referred to the school's child study team (Exhibit 10).  The student did, however, maintain a B average, and his eighth grade teacher described him as able to work well with others (Exhibits 12, 22). 

            At the age of 13, the student became involved in activities and behaviors that exposed him to, and resulted in, serious harm (Exhibit 22; Transcript p. 757).    At the beginning of ninth grade, petitioners' son sought assistance from a school social worker.  Throughout ninth grade, the student had weekly counseling sessions with the social worker (Transcript p. 586).  Also in ninth grade, the student's mother requested testing for her son to determine if he had an attention deficit hyperactivity disorder (ADHD) (Exhibit 22).  Evaluations identified ADHD and a phonemic processing deficit (Exhibit 22, Exhibit A).  In spring 2002, the district's Section 504 Committee recommended accommodations of flexible test settings, extended time for test administrations, and books on tape.  The evidence shows that the student rarely took advantage of the accommodations (Exhibits 22, A; Transcript pp. 412-13, 422).  During the 2001-02 school year, petitioners' son was suspended once, for leaving school without permission, but he completed ninth grade with a B average (Exhibit 14).  

            Approximately one week after the end of the ninth grade 2001-02 school year, the student contacted the social worker and advised him of serious problems that were of concern to him.  The social worker arranged for the student to inform his parents  (Transcript pp. 409-10) and  the social worker referred petitioners to the Westchester Jewish Community Center, which offered specialized counseling services (Transcript p. 402).  The student did attend three counseling sessions at Westchester Jewish Community Center, but he did not develop a positive rapport with the counselor (Transcript pp. 461, 768).  The student then began to attend sessions with a private counselor, whom he continued to see in tenth grade (Exhibit 22; Transcript pp. 461, 768, 824).  The student had almost daily contact with the school social worker during the first half of tenth grade (Transcript p. 586).  In the second semester of 2002-03, the social worker and the student met weekly until the student stopped attending the district's high school (Transcript p. 590). 

            Petitioners' son reportedly began using marijuana outside of school prior to the 2002-03 school year.  In December 2002 or January 2003, the student began using marijuana during the school day (Transcript pp. 406-08).  As the student's marijuana use escalated, the social worker confronted the student about his substance abuse (Transcript pp. 419-20, 489).  The student reportedly expressed interest in attending an alternative high school with programs for students who abuse drugs and alcohol (Transcript p. 469).

            On December 12, 2002, the student was suspended for fighting (Exhibit 32).  He was suspended a second time for fighting on January 13, 2003 (Exhibits 11, 32).  On March 5, 2003, the student was suspended for possession of marijuana and drug paraphernalia (Exhibits 1, 2).  On March 10, 2003, the student's parents requested that he be evaluated by respondent's Committee on Special Education (CSE) for consideration of classification as emotionally disturbed (Exhibits 3, 4).

            The student was evaluated in March 2003 (Exhibit 11).  The evaluator administered the Wechsler Adult Intelligence Scale – Third Edition (WAIS-III).  The student's full scale IQ score of 101 was in the average range.  The test yielded a 25-point discrepancy between the student's verbal IQ score of 112 and performance IQ score of 87.  In addition to cognitive testing, the evaluator conducted a series of assessments to determine the student's emotional status.  The student's total score on the Beck Depression Inventory – II fell within the upper limit of the moderate range of depression, but his score of 67 on the Reynolds Adolescent Depression Scale was below the score of 77 required for determining clinical depression.  The student's mother completed two assessments of her son.  On the Child Behavior Checklist, which she completed on the day the student was evaluated, her report indicated that the student's anxious/depressed behavior was within normal limits, his withdrawn/depressed behavior was in the borderline clinical range and his oppositional defiant behavior was in the clinical range, above the 97th percentile.  When the student's mother completed the Adolescent Symptom Inventory at home, her ratings met or exceeded criterion scores for ADHD, hyperactive-impulsive type, conduct disorder, antisocial personality disorder, oppositional defiant disorder (ODD), post traumatic stress disorder (PTSD) and substance abuse, but did not meet the criteria for dysthymic disorder or major depressive disorder (Exhibit 11).

            An educational evaluation of the student was also conducted in March 2003 (Exhibit 10).  On the Stanford Diagnostic Reading Test, the student achieved scores in the 76th percentile for reading comprehension and in the 73rd percentile for vocabulary.  On the Stanford Diagnostic Mathematics Test, he achieved a computation score in the 63rd percentile and a concepts and applications score in the 85th percentile.  When administered the Test of Written Language 3, the student achieved an overall standard score in writing in the average range.  The evaluator reported that the student remained focused throughout the evaluation.  He recommended that the student take advantage of the accommodations recommended by the 504 Committee.

           The CSE convened on March 22, 2003 to review the results of the evaluations.  It determined that the student did not meet the criteria to be classified emotionally disturbed (Exhibit 16).  The school social worker recommended placement at Hillside, a specialized district program for nonclassified students who engage in substance abuse (Exhibit 16; Transcript p. 418).  Hillside was the program the student had previously expressed interest in attending (Transcript p. 469).  The student's third quarter grades for 2002-03 indicated a B average for core academic courses (Exhibit 14B).

            Petitioners enrolled their son in Family Foundation on April 15, 2003 (Transcript p. 176).  On May 12, 2003, the parents notified the district that they had placed their son at Family Foundation (Exhibit 15).  On May 27, 2003, the parents requested an impartial hearing (Exhibit 17).  At a June 24, 2003 preconference hearing, the hearing officer directed the district to conduct an observation of the student and to reconvene the CSE (Exhibit 26).  The CSE reconvened on July 31, 2003, after the social worker had observed the student at Family Foundation (Exhibit 23).  In addition to the social worker's observation report (Exhibit 23), the CSE reviewed an updated social history (Exhibit 22), a letter from the student's private counselor (Exhibit 25) and a letter from a psychiatrist who had prescribed antidepressant and antipsychotic medication for the student (Exhibits 24, 28; Transcript p. 828).  The CSE again determined that the student did not meet the criteria to be classified emotionally disturbed.  On August 13, 2003, the parents requested a continuation of the impartial hearing.

           The impartial hearing recommenced on October 28, 2003, continued over the course of four days, and concluded on December 19, 2003.  The hearing officer held, in a decision dated February 18, 2004, that respondent's CSE properly declined to classify the student as emotionally disturbed, and consequently, he denied petitioners' request for tuition reimbursement.  Petitioners appeal, asserting that the CSE failed to properly classify their child as emotionally disturbed, that they are entitled to tuition reimbursement, and that respondent violated the confidentiality provisions of 8 NYCRR 200.5(e) and Section 50-b of the Civil Rights Law. 

            Congress enacted the Individuals with Disabilities Education Act (20 U.S.C. §§ 1400-1451 [1997]) (IDEA) to ensure that all children with disabilities have available to them a free appropriate public education (FAPE) that emphasizes special education and related services designed to meet the students' unique needs (20 U.S.C. § 1400(d)(1)(A) [1997]).  A child with a disability is a student who has been evaluated and been determined to have either mental retardation, a hearing impairment including deafness, a speech or language impairment, a visual impairment including blindness, emotional disturbance, an orthopedic impairment, autism, traumatic brain injury, an other health impairment, a specific learning disability, deaf-blindness, or multiple disabilities, and who, by reason thereof, needs special education and related services (see 34 C.F.R. § 300.7[a] [1]; see also 8 NYCRR 200.1[zz]). 

         Emotional disturbance means a condition exhibiting one or more of the following characteristics over a long period of time and to a marked degree that adversely affects a student's educational performance:

(i) an inability to learn that cannot be explained by intellectual, sensory, or health factors.

(ii) an inability to build or maintain satisfactory interpersonal relationships with peers and teachers;

(iii) inappropriate types of behavior or feelings under normal circumstances;

(iv) a generally pervasive mood of unhappiness or depression; or

(v) a tendency to develop physical symptoms or fears associated with personal or school problems.

The term includes schizophrenia. The term does not apply to students who are socially maladjusted, unless it is determined that they have an emotional disturbance.

(8 NYCRR 200.1[zz][4]; see also 34 C.F.R. § 300.7[c][4])

            When a CSE recommends that a student be classified emotionally disturbed, a nexus must exist between the student's emotional problems and performance in school (Application of a Child Suspected of Having a Disability, Appeal No. 01-108).    In order to be classified as a child with a disability under federal regulation, or its state counterpart, a student must have a mental, physical or emotional condition that adversely affects the student's performance to the extent that he or she requires special education and/or related services (34 CFR § 300.7[a][1]; 8 NYCRR 200.1[zz]; Application of a Child Suspected of Having a Disability, Appeal No. 94-36; Application of a Child Suspected of Having a Disability, Appeal No. 94-42). 

            The definition of emotional disturbance also requires a showing of a condition exhibiting one or more of five characteristics over a long period of time and to a marked degree that adversely affects a child's educational performance.  Upon a review of the entire record, I concur with the impartial hearing officer and find that the record does not establish that petitioners' son exhibited any one of the five enumerated characteristics over a long period of time to a marked degree that adversely impacted his educational performance.

            The record in the instant case does not demonstrate that petitioners' son exhibited the first characteristic, "an inability to learn that cannot be explained by intellectual, sensory, or health factors," for a long period of time and to a marked degree (8 NYCRR 200.1[zz][4][i]).  The phrase "an inability to learn" has long been interpreted to mean that a student's emotional condition has a significant negative effect upon his or her educational performance.  The phrase does not mean that a student cannot learn at all (see Muller v. Comm. on Special Educ., 145 F.3d  95, 103-04, fn 6 [2d Cir. 1998]; Application of a Child with a Disability, Appeal No. 01-108).  Petitioners' son performed academically in a manner commensurate with his cognitive ability.  He does not have a poor academic record. He maintained a B average in his core subjects throughout his educational career (Exhibits 14 A-C), despite a performance IQ score in the low average range (Exhibit 11, p. 3).  Although the student's grades declined during the first half of tenth grade, they improved during the third quarter (Exhibit 14C).  Petitioners question the accuracy of their son's grades during third quarter because the record shows that the student did not attend all tutoring sessions (Transcript pp. 775-78).  Although petitioners' son may not have attended all tutoring sessions, nothing in the record suggests that he failed to produce the written work upon which his grades were based.  The student's grades indicate that his emotional condition did not have a significant effect upon his educational performance, academic or otherwise.   The evidence shows that, while this student experienced events that were understandably very traumatic for him, the student never exhibited an inability to learn.

             The record does not demonstrate that the student did exhibited "an inability to build or maintain satisfactory interpersonal relationships with peers and teachers"  for a long period of time and to a marked degree (8 NYCRR 200.1[zz][4][ii]).  On the contrary, the student built and maintained a number of satisfactory relationships. The student initiated and maintained a close relationship with a school social worker (Transcript pp. 400-01).  The student interacted with this social worker on an almost daily basis during the ninth grade and the first half of the tenth grade (Transcript pp. 395-96, 586).  In addition, the evidence shows the following: that throughout the ninth grade and the beginning of tenth grade the student maintained a "huge" group of friends, who were "popular kids," he displayed leadership; all his teachers liked him; and he got along well with "security and the deans" (Transcript pp. 415, 483).  The student began to lose contact with old friends as his drug use increased (Transcript pp. 406-07).  Although he had begun to abandon old friends, the evidence does not show that the student was unable to build or maintain satisfactory interpersonal relationships with peers and teachers for a long period of time.  Testimony from an employee of Family Foundation indicates that, while the student was angry when he first arrived at the school, he was socializing well by the time of the hearing (Transcript p. 631).  Testimony also indicates that he did not challenge teachers (Transcript p. 633). 

             As to the third characteristic, the record does not demonstrate that the student   engaged in “inappropriate types of behavior or feelings under normal circumstances” over a long period of time to a marked degree (8 NYCRR 200.1[zz][4][iii]).  While the student had been involved in two fights during the tenth grade and he was using illegal drugs, the circumstances preceding this behavior were not normal (Transcript pp. 703-05).  The student had been subjected to unusually difficult circumstances during the summer prior to the tenth grade (Transcript pp. 409-10) and reportedly became angry about the manner in which the circumstances were handled  (Transcript p. 411).  I do not find that the student's behavior and feelings were inappropriate in this case given that the student's circumstances were traumatic.

             As to the fourth characteristic, the record does not persuasively demonstrate that the student exhibited "a generally pervasive mood of unhappiness or depression" for a long period of time and to a marked degree that adversely affected his educational performance (8 NYCRR 200.1[zz][4][iv]).  Evaluations of the student produced differing results.  The student's private psychotherapist suggested diagnoses of substance abuse and post traumatic stress disorder (Exhibit 25).  The therapist opined that most of the student's pathology stemmed from trauma and that, at times, the student felt suicidal and despondent.  The therapist did not, however, diagnose the student with depression, nor did he indicate how long the student had appeared suicidal and despondent.  The record does not indicate any history of suicide threats, gestures, attempts, or mental health hospitalization. In July 2003, a psychiatrist diagnosed the student with Major Depression, Single Episode, severe without psychotic features (Exhibit 24).  The psychiatrist had seen the student two or three times (Transcript p. 827). 

            The student was evaluated upon entering Family Foundation (Exhibit 35).  The evaluator reported that the student acknowledged using a variety of illegal drugs and that the student described himself as outgoing and friendly.  The evaluator reported that the student's mood was guarded and that he exhibited no signs of a social phobia or suicidal or homicidal thoughts.  The evaluator diagnosed the student with substance abuse and dysthymic disorder. 

            The school psychologist evaluated the student in April 2003 (Exhibit 11).  One test suggested depression in the moderate range, and another test revealed that the student was not clinically depressed.  The student's scores on the Oppositional Defiant Problems and Conduct Problems scales were in the clinical range.  Finally, the psychologist reported that the student exhibited some behaviors characteristic of ADHD. 

             The social worker, who had had almost daily contact with the student during the ninth grade and the beginning of the tenth grade, testified that the majority of the time the student was a "typical teenage kid" (Transcript p. 417).  He further stated that petitioners' son had his "ups and downs" but that his "main state" was that of a very socially active student engaged in classes as well as engaged with his teachers, athletics, and other social activities (Transcript p. 417).  The social worker did not agree that the student had Major Depression, Single Episode, and he testified that the student never told him he was suicidal, helpless or hopeless (Transcript pp. 457-8).  The social worker testified that he did not observe "specifiers" that would indicate a major depression and that on the contrary petitioners' son had "a rather busy social life going on" (Transcript p. 458).  As to his credentials, the social worker stated he has a Masters Degree in Social Work and was a clinical social worker, and that he has been an adjunct professor at New York University for over 20 years, teaching graduate level courses in the assessment of psycho-pathology (Transcript pp. 393-94).  The two mental health professionals most familiar with the student were the school social worker and the student's private therapist, neither of whom identified symptoms that led them to diagnose the student with depression.¹ I concur with the impartial hearing officer's determination that the school social worker's testimony is persuasive and I find it to be consistent with the record. 

            The student began a course of treatment with medication in January 2003 (Exhibit 35; Transcript p. 827).  The student enrolled at Family Foundation on April 15, 2003 (Transcript p. 683).  The psychiatrist, who submitted a report dated July 9, 2003 (Exhibit 24), diagnosed the student with Major Depression, Single Episode, which can last six months or longer if left untreated (Exhibit G).  Both the representative from Family Foundation and the student's father acknowledged that the student had improved emotionally by the fall of 2003 (Transcript pp. 685, 859).  Although there is conflicting evidence as to the level of a generally pervasive mood of unhappiness or depression, I find, upon an examination of the entire record, that I agree with the hearing officer's determination that the mood of unhappiness and depression was not to a marked degree over an extended period of time which adversely affected the student's educational performance. 

            As to the fifth characteristic, the record does not demonstrate that the student  exhibited "a tendency to develop physical symptoms or fears associated with personal or school problems" for a long period of time and to a marked degree that adversely affected his educational performance (8 NYCRR 200.1[zz][4][v]).  Moreover, there is no evidence of schizophrenia. 

             Because I have found that petitioners' son is not a student with a disability, petitioners are not entitled to tuition expenses and I need not reach the issue of whether or not Family Foundation was an appropriate placement.  The necessary inquiry is at an end (M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 66 [2d Cir. 2000]; Walczak, 142F. 3d at 134; Application of a Child with a Disability, Appeal No. 03-058).

            I have considered petitioners' remaining contentions and find them to be without merit.

THE APPEAL IS DISMISSED.