04-111

            Preliminarily, I will address a procedural issue raised in this appeal.  In its answer, respondent asserts that the notice with petition, petition and memorandum of law were not served in a timely manner and that the appeal should be dismissed.   The decision of the impartial hearing officer was dated November 2, 2004 and served by mail on the parties.  Respondent correctly asserts that petitioners' time to serve their petition for review expired on December 13, 2004 and further alleges that the petition for review was served on its district clerk on December 16, 2004. Petitioners’ affirmation of service confirms the December 16, 2004 service date.  A petition for review to the State Review Officer (SRO) must be served within the timelines specified in section 279.2 of the Regulations of the Commissioner of Education (8 NYCRR 279.13).  An SRO may excuse a failure to timely serve a petition for review within the time specified for good cause shown (id.). The reasons for such failure shall be set forth in the petition (id.).  Petitioners do not specify good cause for the late service in their petition (see 8 NYCRR 279.13).  However, petitioners filed an affirmation with their petition, stating that on December 13, 2004, a notice with petition, petition, and memorandum of law were served on respondent; that on December 15, 2004 petitioners' attorney received a copy of a letter from respondent's attorney informing the Office of State Review that although a notice of petition and two copies of a “brief” were served on respondent on December 13, 2004, that a true copy of the petition had not been served; and that on December 16, 2004 petitioners' attorney personally served the notice with petition, petition, and memorandum of law on respondent.     I will exercise my discretion and excuse the delay in service, giving consideration to the fact that petitioners' attorney asserts in her affirmation that a timely attempt was made to serve the petition on December 13, 2004 and that service was effectuated shortly thereafter on December 16, 2004.    I, therefore, decline to dismiss the petition for review on the grounds of improper or untimely service.           

            At the commencement of the impartial hearing on June 4, 2004, the student was 14 years old and in the ninth grade.  When the hearing concluded on September 23, 2004, the student was 15 years old (Tr. p. 637) and residing at St. Anne's Institute, a residential treatment center in Albany, New York (Tr. pp. 688, 726).  The student's eligibility for special education services is the subject of this appeal.

           A brief discussion of the student’s prior educational history is helpful for context. While attending fifth grade, during the 1999-2000 school year, the student did well academically, achieving mostly A's and B's on her report card (Dist. Ex. 35).  During the student's sixth grade year, in 2000-01, she began to exhibit academic difficulty, with her grades declining from mostly A's and B's to all B's and C's (Dist. Ex. 34).  During the 2001-02 seventh grade school year, the student's grades declined further, and her third quarter report card included three D's, one C+, one C, and one B- (Tr. p 573; Dist. Ex. 31).  At this time, the student reportedly experienced difficulties in her home environment (Tr. pp. 640-43).  The student completed her seventh grade year in respondent Carmel Central School District (Dist. Ex. 30).

            Petitioners' daughter began the 2002-03 school year in the eighth grade and received first quarter grades in the 50's and 60's (Dist. Ex. 25).  Her grades were also in the 50's and 60's during the second quarter, with the exception of mathematics, in which her grade was a 90 (Dist. Ex. 25).  The student's math teacher described petitioners' daughter as a good student who demonstrated a good understanding of math properties and who was extremely capable of providing verbal explanations to assist her classmates when they experienced difficulty (Tr. pp. 328-29, 341).  The student was capable of completing class assignments in the time allotted, but her grades suffered because of her inconsistency in completing assignments (Tr. pp. 329-30, 341-42, 344-45, 356).    The student's eighth grade English/language arts teacher also reported that the student was capable of performing at grade level but that her grades were affected by her failure to complete all of her homework assignments (Tr. pp. 375, 383-84, 387-88). 

            In addition to the student's academic difficulties, the student experienced behavioral difficulties relating to absences and tardiness (Dist. Exs. 26-29; Tr. pp. 359, 380-82, 392).   At home, her mother reported that the student used inappropriate language, disregarded house rules, and engaged in inappropriate behavior (Dist. Ex. 11 at p. 3).   The student subsequently began receiving private counseling (Dist. Ex. 11 at p. 3; Tr. pp. 531, 558-59).  By letter dated January 29, 2003, the student's father requested that his daughter be evaluated for eligibility for special education services (Dist. Ex. 24) She was referred to respondent's CSE on February 5, 2003 (Dist. Ex. 23).

           An educational evaluation of the student was conducted in March 2003 (Dist. Ex. 17).  Administration of the Woodcock-Johnson Tests of Cognitive Abilities and Tests of Achievement yielded a broad reading standard (and percentile) score of 91 (38), a broad math score of 87 (32) and a broad written language score of 109 (63) (Dist. Ex. 17 at p. 5).  The evaluator noted that the student's reading fluency standard score of 78 was related to her slow reading rate, but that she made no reading errors during this portion of the test (Tr. p. 138).  She also noted that the student performed very well on the written language portion of the assessment, and that the student had indicated that she enjoyed writing (Tr. p. 157).

            A psychological evaluation was completed on April 3, 2003 when the student was 13 years and nine months old (Dist. Ex. 12).  Administration of the Wechsler Intelligence Scale for Children – III (WISC-III) yielded a verbal IQ score of 90 (25th percentile), a performance IQ score of 69 (second percentile) and a full scale IQ score of 77 (sixth percentile) (Dist. Ex. 12 at p. 1).  The student's WISC-III score for verbal comprehension was 93 (32nd percentile), her perceptual organization score was 71 (third percentile), her freedom from distractibility score was 87 (19th percentile), and her processing speed score was 83 (13th percentile) (Dist Ex. 12 at p. 4).  The evaluator noted that the student's overall score on the WISC-III was not an accurate reflection of her cognitive ability because her performance on the test was inconsistent, as she responded incorrectly to easier test items and correctly answered more difficult questions (Tr. pp. 209, 215). Also, the student worked slowly and carefully, which affected her scores on the timed portions of the evaluation (Tr. p. 213).

            The Connors' Teacher Rating Scale was completed collaboratively by the student's classroom teachers as part of the psychological evaluation (Dist. Ex. 12 at p. 3; Tr. pp. 242, 268-69).  Results of teacher ratings suggested significant cognitive and attention deficits consistent with diagnostic criteria for diagnosis of an attention deficit hyperactivity disorder (ADHD), with six of the nine diagnostic criteria for inattentive ADHD rated as occurring "very frequently" (Dist. Ex. 12 at p. 3).  The school psychologist noted that these results placed the student at risk for ADHD, but that this was a medical diagnosis that could not be determined by a school psychologist because there were many possible explanations for the behavior the student was exhibiting (Tr. pp. 217-19, 221).

            Respondent's CSE convened for an initial review of the student on April 22, 2003 (Dist. Ex. 7).  The CSE reviewed the student's social history as well as results of the psychological and educational evaluations, a classroom observation report, two teacher reports, and the student's disciplinary record (Dist. Ex. 7; Tr. pp. 518, 537).  Based upon available information, the CSE determined that the student did not meet the criteria for classification as a student eligible for special education services (Dist. Ex. 7; Tr. pp. 223-24).  Comments on the document generated as a result of that meeting note that family concerns appeared to be affecting the student's academic performance, and that she was receiving individual and family counseling (Dist. Ex 7)).  The comments section further indicated that the student had been complaining of headaches and that she was being evaluated by a neurologist (id.).

            The student's mother attended the April 22, 2003 CSE meeting and did not, at that time, express disagreement with the CSE's recommendation (Tr. p. 557).  The Carmel school psychologist testified that the mother was told she could return to the CSE with the results of the student's neurological evaluation or a report from the student's private therapist, but she did not believe that additional information had been provided (Tr. pp. 204, 219-22, 561).

            Petitioners' daughter was suspended for two days on May 6, 2003 and May 7, 2003 because she refused to go to class and because she left school without permission (Parent Ex. D).  The student was placed at an emergency and respite residence on May 18, 2003 (Parent Ex. O).  Referral information prepared for her placement at the residence noted that the student was resistant to authority figures, had no remorse or understanding of consequences, was unable to follow rules or accept responsibility for her actions, and would become confrontational and defiant (Parent Ex. O at p. 2).  The student's mother filed a person in need of supervision (PINS) petition in Putnam County Family Court, pursuant to Article 7 of the Family Court Act, on May 28, 2003 (Dist. Ex. 6 at p. 1).  The court found the student to be a person in need of supervision on August 13, 2003 because of incorrigible behavior (Dist. Ex. 6 at p. 4) and placed the student in the custody of the Putnam County Department of Social Services (DSS). The student was subsequently placed in residential programs at a Vanderheyden Hall (Vanderheyden) group home and at St. Anne's Institute beginning August 13, 2003 and continuing during the hearing (Dist. Exs. 2, 3, 6 at pp. 5, 41).

               Directly after the student's discharge from the emergency and respite residence on August 7, 2003, the student was taken to a psychiatric facility (Tr. pp. 594) and subsequently placed in a residential program at a Vanderheyden group home (Tr. pp. 605, 609, 629-30; Dist. Exs. 2, 3), where a psychiatrist evaluated her on August 21, 2003 (Parent Ex. G).  The psychiatrist offered a diagnosis of depressive disorder, not otherwise specified, possible attention deficit disorder (ADD) and oppositional defiant disorder (ODD) (Parent Ex. G at p. 2).  The psychiatrist noted that, at the time of the evaluation the student was taking an antipsychotic medication as well as a medication to treat anxiety and depression (Parent Ex. G at p. 1).  He recommended reducing the dosage of the antipsychotic medication if no psychotic features were observed in the next six to eight weeks (Parent Ex. G at p. 2).

            In September 2003, the student resided in a group home operated by Vanderheyden and attended ninth grade at Troy High School, where she received failing grades and was frequently absent (Tr. pp. 605-06).  After approximately one month at Troy High School, the student was moved to a Vanderheyden program that offered residential and educational services on the same campus (Tr. pp. 605-07).  The student's father testified to being financially responsible for a portion of the student's care while at Vanderheyden (Tr. p. 607).  However, I note for the record that the student's father has submitted cancelled checks to Putnam County DSS Support Collection Unit (Parent Ex. F; Tr. pp. 607-08), but has offered no proof that he has contributed to the student's actual residential costs while she was a resident at Vanderheyden.

            On October 3, 2003 and October 6, 2003, a psychologist from Vanderheyden evaluated the student and offered diagnoses of ADHD, combined type, conduct disorder, adolescent onset, and parent-child problems (Parent Ex. H at pp. 5-6).  The evaluator noted that the records of prior IQ testing indicated the presence of learning disabilities and suggested that this contributed to her "lack of motivation towards academics and achievement" (Parent Ex. H at p. 1).  The psychologist recommended a referral for a psychiatric evaluation to consider discontinuation of antipsychotic medication and possible prescription of medication for treatment of ADHD (Parent Ex. H at p. 6).  I note that the student's father forwarded copies of both the August 21, 2003 psychiatric evaluation (Parent Ex. G) and the October 3, 2003 and October 6, 2003 psychological evaluation (Parent Ex. H) to respondent's CSE in December 2003 because he believed that the CSE would reconvene if it had access to these reports (Tr. p. 618).

            Petitioners' daughter attended Vanderheyden during the 2003-04 school year, while the hearing was in progress.  She attended all general education classes at Vanderheyden and did not receive any special education services (Tr. p. 665).  She received failing grades in all of her classes while at Vanderheyden (Tr. pp. 658, 710).  The student continued to walk out of class at Vanderheyden and, on more than one occasion, left the grounds without permission (Tr. p. 711).

            By letter dated April 15, 2004, petitioners requested an impartial hearing to contest the determination of the April 22, 2003 CSE, claiming that respondent failed to conduct all of the appropriate evaluations to determine whether their daughter was eligible to receive special education services and requesting: reimbursement for all of their expenses paid for their daughter's residential placement; compensatory education; and extended school year (ESY) services (IHO Ex. 6).  The impartial hearing began on June 4, 2004 and testimony was heard over five days, concluding on September 23, 2004.  On July 7, 2004, Putnam County DSS placed the student in the St. Anne's Institute residential treatment center because she failed to comply with the rules of her previous placements (Dist. Ex. 41; Tr. pp. 688, 726; see Dist. Exs. 2, 3).¹  In September 2004, while the impartial hearing was in progress, a CSE convened at St. Anne's Institute and the student's father participated by telephone (Tr. pp. 732-33, 739-42).  I note that the outcome of that CSE meeting was not made a part of the record.  The impartial hearing officer rendered his decision on November 2, 2004 finding that respondent’s CSE failed to conduct a physical examination of the student and that the April 22, 2003 CSE was improperly composed.  The impartial hearing officer annulled the CSE's determination that the student was ineligible to receive special education services.  He did not remand the matter to respondent's CSE, reasoning that the student was no longer in the “territorial jurisdiction” of the district and the district was therefore no longer responsible for determining the student's eligibility for special education services.  The impartial hearing officer further determined that respondent did not violate its "child find" obligations when petitioners presented evaluations performed after the April 22, 2003 CSE meeting because the student was no longer residing in respondent's district.  The impartial hearing officer further determined that the parent was not entitled to payment by the district for expenses related to the student's residential placement.

            On appeal, petitioners contend that the impartial hearing officer correctly annulled the CSE's determination that the student was ineligible to receive special education services, but erred by not remanding the matter to respondent’s CSE.  Petitioners further contend that the impartial hearing officer erred in finding that respondent did not have "child find" obligations relative to the student in January 2004 because she resided in another school district.  Petitioners seek compensatory education for the time that the student was allegedly wrongfully denied special education services and seek reimbursement of expenses paid to Putnam County DSS for the student's residential placement. Respondent cross-appeals contending that the impartial hearing officer erred in annulling its CSE determination that the student was ineligible to receive special education services.  Respondent asserts that its CSE performed all of the appropriate evaluations and assessments necessary to determine that petitioners' daughter was not eligible to receive special education services, that its CSE was properly constituted, that its CSE properly determined that the student was ineligible to receive special education services, and that the district did not violate its child find obligations. 

            When a child suspected of having a disability is referred to a CSE, the CSE must ensure that an individual evaluation of the referred child is performed.  An individual evaluation must include at least a physical examination, an individual psychological evaluation, a social history, an observation and other appropriate assessments or evaluations as necessary to ascertain the physical, mental, behavioral and emotional factors which contribute to the suspected disability (8 NYCRR 200.4[b][1]; see Application of a Child Suspected of Having a Disability, Appeal No. 04-059).  Neither federal nor state regulations prescribe a particular set of tests that must be used in each evaluation (34 C.F.R. § 300.532; 8 NYCRR 200.1[aa]).

            In the instant case, respondent made several procedural errors.  State regulation requires that each child referred to a CSE because of a suspected handicapping condition receive an individual evaluation, including a physical examination in accordance with the provisions of Section 903, 904, and 905 of the Education Law (8 NYCRR 200.4 [b][1][i]). There is no clear evidence in the record of a physical examination of the student   (Dist. Ex. 16; Tr. pp. 130-31, 158-59).  The impartial hearing officer found that respondent failed to establish that it had conducted a physical examination, and concluded that therefore respondent failed to establish that it conducted all required evaluations (IHO Decision at pp. 15-16).  I concur with this finding of the impartial hearing officer.

            In addition, I concur with the finding of the impartial hearing officer that the April 22, 2003 CSE meeting was not properly constituted.  The record revealed that the CSE meeting did not include the required additional parent member of a student with a disability residing in the school district or a neighboring school district. The failure to have the additional parent member at a CSE meeting violated New York State law (N.Y. Educ. Law § 4402 [1][b][1][a][viii]; see also 8 NYCRR 200.3[a][1][viii]; Application of a Child with a Disability, Appeal No. 04-083).

            I also concur with the impartial hearing officer that the April 22, 2003 CSE meeting was not properly constituted because one of the student's regular education teachers did not participate.  The IDEA and its implementing regulations require that the CSE include "at least one regular education teacher of such child (if the child is, or may be, participating in the regular education environment)" (20 U.S.C. § 1414[d][1][B][ii]; see 34 C.F.R. § 300.344[a][2]; see also 8 NYCRR 200.3[c][2][ii]; Application of a Child with a Disability, Appeal No. 04-088).  The CSE meeting information sheet listed one of the student's regular education teachers as having attended the April 22, 2003 CSE meeting (Dist. Ex. 7).  Although there was a recording of attendees at the April 22, 2003 CSE meeting (Tr. pp. 516, 533-35), a "sign-in" sheet was not provided in the record.  Moreover, none of the witnesses could affirmatively state that a regular education teacher of the student actually participated at the April 22, 2003 CSE meeting (see Tr. pp. 359, 406-07, 533-35).  In fact, the regular education teacher listed on the CSE meeting information sheet (Dist. Ex. 7) was unable to state with certainty whether she participated at the April 22, 2003 CSE meeting and testified that she "didn't recall attending it but [knew her] name was on the record" (Tr. pp. 406-07).  The impartial hearing officer found, after hearing and assessing testimony on this issue, that respondent failed to meet its burden of demonstrating that a regular education teacher of the student participated at the April 22, 2003 CSE meeting (IHO Decision, p. 15).  I concur with this finding.

            The absence of a regular education teacher of the child was of particular significance because no member of the CSE was able to provide insight into the student's day-to-day performance in the classroom, or offer a first-hand description of how the student's educational performance was affected by her behavior.

            Although the April 22, 2003 CSE’s determination that the student was not eligible for special education services was improperly made, I find that based upon the data before it at the time of its determination, that the evaluative information did not require a determination that the student was eligible for special education services (IHO Decision, p. 17).

            The record reflects that petitioners requested a hearing nearly a year after a determination was made that their child was not eligible for special education services. Moreover, the record suggests that there has been at least one subsequent CSE meeting at St. Anne’s Institute, in September 2004, pertaining to the student’s eligibility for special education in which at least one of the petitioners participated (Tr. pp. 732-37, 739-41). Thus, it appears that as of the last day of the impartial hearing, the student was being assessed by St Anne’s Institute for special education services and that a determination has been made as to which CSE has programmatic responsibility for the student.   As to petitioners’ request that I remand this matter for consideration of eligibility for special education by respondent’s CSE, I decline to do so. (Tr. pp 739-47; see Education Responsibilities for School-Age Children in Residential Care, New York State Education Department VESID Manual [Feb 1996]).

            I have reviewed the parties’ remaining contentions and I find them to be without merit.

THE APPEAL IS DISMISSED.

THE CROSS-APPEAL IS DISMISSED.