05-012

          Petitioners appeal from the decision of an impartial hearing officer which denied their request to reimbursed for their son's tuition and transportation costs at the Ross School (Ross) for the 2003-04 school year.  The appeal must be dismissed.

          The hearing below was conducted over a period of four months and included five days of testimony which concluded on October 18, 2004. At the start of the hearing on June 8, 2004, petitioners' son was 12 years old and attending the sixth grade at Ross, where his parents unilaterally placed him for the 2003-04 school year   Ross is a non-special education private school (Tr. p. 671) that has not been approved by the Commissioner of Education as a school with which school districts may contract to instruct students with disabilities.  A July 8, 2004 physician’s note states that the student has diagnoses of pediatric bipolar disorder, attention deficit hyperactivity disorder (ADHD), and oppositional defiant disorder (ODD) (Parent Ex. X).   He takes medication for ADHD and bipolar disorder (Dist. Ex. 20 at p. 1; Tr. p. 553).  There is no dispute concerning an April 26, 2004 Committee on Special Education (CSE) determination that the student is eligible for special education services as a student with an emotional disturbance (ED) (Dist. Ex. 11 at p. 1; Tr. pp. 255, 475).  However, the timeliness of the determination of eligibility for special education services is in dispute (Tr. p. 475).

            The hearing record reveals that the student initially received special education services through the Greenport School District (Greenport) Committee on Preschool Special Education (CPSE) at a Board of Cooperative Educational Services (BOCES) program for two years due to speech delays and possible ADHD (Tr. pp. 668-69).  Petitioners' son was subsequently determined no longer eligible for preschool special education services by the CPSE in May 1997 (Tr. p. 669).  He transferred from Greenport to respondent Oysterponds Union Free School District (Oysterponds) in April 1998 during his kindergarten year (Tr. pp. 495, 641-42).  The student remained at respondent's school district from April 1998 through the 2002-03 school year, the student's fifth grade year, and showed satisfactory achievement in the general curriculum passing from grade to grade (Dist. Ex. 29).

            Petitioners unilaterally placed their son at Ross in September 2003, for the 2003-04 school year, the student's sixth grade year (Tr. pp. 665, 952).  Oysterponds provides services for students from kindergarten through sixth grade; then, the students attend Greenport for grades seven through twelve (Tr. p. 155).  The student's mother testified that because Greenport is a larger school district than Oysterponds, petitioners were concerned that their son would be “picked on” due to his small stature if he attended Greenport (Tr. p. 664).  His mother further testified that because the application process for Ross is “rigid,” petitioners applied a year in advance for admission to ensure their son would be in a position to attend Ross rather than Greenport for seventh grade (Tr. p. 665), and that it was "luck of the draw" that their son was able to attend Ross starting in his sixth grade year (id.).

            The student had a difficult time transitioning from Oysterponds to Ross (Tr. p. 952).  A counselor/social worker at Ross testified that Ross is noted to be “more like a college campus” where children not only go from classroom to classroom, but from building to building (Tr. p 821). She stated that Ross is very different from any other schools, including public schools, in classroom size, classroom setting, and curriculum (Tr. p. 821). She testified that the student took a while to adjust to the new school and had an emotional outburst in the beginning of the school year when he got very angry, lost control, and threatened to harm himself (id.; Tr. pp. 821-22).  The incident resulted in psychiatric intervention and an affirmative determination that it was safe for the student to return to school  (Tr. p. 822).  The school counselor/social worker testified that the student's medication was changed at that time and the student “began doing much better,” was more cooperative, but he was still exhibiting some difficulties in doing homework (Tr. pp. 822-23).  She further noted that although there was improvement, the student’s classroom behavior had not previously disrupted the classroom (Tr. p 822).

            The student's stepfather contacted respondent's superintendent of schools at the end of September 2003 because he thought there might be a better school for the student to attend than Ross (Tr. p. 952-53).  In September 2003, petitioners also requested that the student be evaluated for special education services (Tr. pp. 953-54). The student's stepfather gave respondent's CSE consent to evaluate his son on October 17, 2003 (Dist. Ex. 3; Tr. p. 211).

            A social history was completed on October 30, 2003 (Dist. Ex. 3 at p. 4).    On November 5, 2003, administration of reading and math subtests of the Wechsler Individual Achievement Test-II (WIAT-II) resulted in a reading composite standard score of 118, and a mathematics composite standard score of 89 (Dist. Ex. 19 at p. 2; see Tr. pp. 292-93).  The evaluator indicated that the student performed at or above grade level in reading, did very well on the math reasoning subtest, but slightly below grade level on the numerical operations subtest because he had some difficulty doing the multiplication (Tr. p. 294).  The evaluator opined that the student was capable of performing grade level work, but needed work on his multiplication facts (Tr. p. 295).

            A December 22, 2003 psychological evaluation report (Dist. Ex. 20) revealed that administration of the Wechsler Intelligence Scale for Children- III (WISC-III) on October 30, 2003 yielded a verbal IQ score of 113, a performance IQ score of 103, and a full scale score of 109, placing the student in the average range of intellectual functioning (Dist. Ex. 20 at p. 2).  Even though the student performed slightly better on verbal reasoning tasks than nonverbal reasoning tasks, and his performance on the Block Design subtest was weak, there was no significant discrepancy between the student's ability to reason with and without the use of words (id.).  Additional testing using the parent completed version of the Achenbach Child Behavior Checklists placed the student's scores in the clinically significant range for the Withdrawn, Anxious/Depressed, Thought Problems, Attention Problems, and Delinquent Behavior scales (Dist. Ex. 20 at p. 3).  The student's score on the Somatic Complaints scale bordered on clinical significance and responses on the Youth Self-Report form of the Achenbach were also borderline significant on the Anxious/Depressed and Attention Problem scales (id.).  The student's English and science teachers at Ross completed the Teacher Report Form of the Achenbach, resulting in all scores within normal limits for a student his age (Dist. Ex. 20 at p. 4).  The science teacher indicated that although his academic performance was at grade level, he felt that the student was not working to his highest potential (id.).  The teacher described the student as putting forth minimal effort when working independently, tending to become defensive when given suggestions on how to improve, and declining an offer to upgrade his work (id.).  The student was further described as pleasant and respectful, but "kind of isolated, and is usually solemn most of the time," and as someone who "lights up and smiles" when an activity excites him (id.). The school psychologist who conducted the evaluation did not make a recommendation in terms of eligibility for special education services; rather she suggested that the CSE review all records to come to an appropriate educational recommendation (Dist. Ex. 20 at p. 5).

            Respondent's CSE convened on January 8, 2004 (Dist. Ex. 22), but the meeting was abruptly ended per request of the student's stepfather without any eligibility determination (Tr. p. 964).  The CSE reconvened on January 29, 2004 (Dist. Ex. 23; Tr. p. 964).  At this meeting, the CSE agreed to the stepfather’s request that a neuropsychological evaluation and a functional behavioral assessment (FBA) be conducted of the student and again, no eligibility determination was made (Dist. Exs. 23, 24, 25; Tr. p. 964).

           The neuropsychological consultation occurred on February 20, 2004 (Dist. Ex. 10).  The resulting report noted the presence of the student's difficulty with attention and executive functions (Dist. Ex. 10 at p. 5).  The evaluator’s findings supported diagnoses of ADHD and ODD (id.).  He also noted the student's variability in terms of the range of emotions as being consistent with the criteria of a diagnosis of childhood bipolar disorder (Dist. Ex. 10 at p. 5) and recommended that the student be classified as ED (Dist. Ex. 10 at p. 6).  The student's private psychiatrist testified that he first prescribed medication treatment for bipolar disorder for the student in October 2003, and that he concurred with the recommendations arising from the neuropsychological consultation which occurred on February 20, 2004 (Tr. pp. 553-54; see Parent Ex. X).

            An FBA of the student was conducted at Ross on March 16, 2004 and a written report completed on March 31, 2004 (Parent Ex. Q).  The student was observed playing with objects, such as tossing his protractor and pen in the air, to avoid engaging in difficult tasks.  However, the student was also observed at other times being on task, compliant and actively engaged in an activity.

            On April 26, 2004, respondent's CSE reconvened to review the student's evaluations and assessments.  The CSE recommended that the student be classified as ED, enrolled in the Oysterponds sixth grade regular education curriculum, and receive 30 minutes of individual counseling per week for the remainder of the 2003-04 school year (Dist. Ex. 11 at p. 1).  Petitioners did not accept the CSE's recommended educational program.  By letter dated April 27, 2004, they requested an impartial hearing for the purpose of obtaining an award of tuition reimbursement and transportation expenses for their son's attendance at Ross for the 2003-04 school year (Dist Ex. 2). 

            The impartial hearing officer rendered a decision on December 13, 2004 finding that respondent did not violate its "child find" obligations prior to the 2003-04 school year, and that respondent completed its determination of eligibility in a timely manner given that the initial CSE meeting was held within 60 school days from receipt of consent to evaluate and petitioners’ requests for adjournments of meetings and additional evaluations.  The impartial hearing officer also found that the April 26, 2004 CSE offered to provide the student a free appropriate public education (FAPE) and petitioners failed to show that Ross was an appropriate placement.  The impartial hearing officer further concluded that equitable considerations did not favor petitioners' claim for reimbursement because petitioners delayed referring the student to respondent's CSE until after placing the student in Ross, which prevented respondent's CSE from having the opportunity to address petitioners' concerns.  The impartial hearing officer, therefore, denied petitioners' request to be reimbursed for the cost of their son's tuition at Ross for the 2003-04 school year and transportation expenses.

            On appeal, petitioners contend that the impartial hearing officer erred in finding that respondent met its "child find" obligations and assert that respondent did not provide the student a FAPE.   Petitioners further contend that the impartial hearing officer erred in determining that Ross was not an appropriate placement for the student and request tuition reimbursement and transportation expenses.  Respondent contends that its CSE met its "child find" obligations by referring the student in October 2003 for an individual evaluation and determination of eligibility for special education programs and services, and that they developed an appropriate individualized education program (IEP) for the student for the remainder of the 2003-04 school year that was reasonably calculated to enable the student to receive educational benefits.

            On appeal, petitioners contend that respondent violated its "child find" obligations under the Individuals with Disabilities Education Act (IDEA) because the student's teachers failed to refer the student to the CSE in the student's fourth and fifth grade school years (Pet. ¶¶ 17, 18).  IDEA places an affirmative duty on state and local educational agencies to identify, locate, and evaluate all children with disabilities residing in the state (20 U.S.C. § 1412[a][3]; 34 C.F.R. § 300.125[a][1][i]; 8 NYCRR 200.2[a][7]; New Paltz Cent. Sch. Dist. v. St. Pierre, 307 F. Supp.2d 394, 400, n.13 [N.D.N.Y. 2004]). This duty applies to "children who are suspected of being a child with a disability…and in need of special education, even though they are advancing from grade to grade" (34 C.F.R. § 300.125[a][2][ii]). To satisfy the requirement, a board of education must have procedures in place that will enable it to find such children (Application of a Child Suspected of Having a Disability, Appeal No. 01-082; Application of a Child with a Disability, Appeal No. 93-41).

            Respondent’s child find obligation is an affirmative one. The child find duty is triggered when the district "has reason to suspect a disability and reason to suspect that special education services may be needed to address that disability" (St. Pierre, 307 F. Supp. 2d 394; Dept. of Educ. v. Cari Rae S., 158 F. Supp. 2d 1190 [D. Haw. 2001]; Application of a Child Suspected of Having a Disability, Appeal No. 01-082).

            The record indicates that the student progressed successfully from kindergarten through third grade, but there were some issues that had to be addressed in fourth and fifth grades (Tr. p. 495; Dist. Ex. 29).  For example, the student's fourth grade teacher, for the 2001-02 school year (Tr. pp. 726-27), testified that the student did well in his subject areas but struggled with his homework (Tr. p. 740).  Initially, the student's teacher sent letters home, but since these letters were not being given to the student's parents, the student's teacher began faxing the student's parents to keep the lines of communication open (Tr. pp. 746-47).  Testimony revealed that petitioners' son received A's and B+'s with a few C's in fourth grade and showed no lack of progress warranting a referral for special education services (Tr. p. 750).  However, petitioners' son was also noted to have episodes of anger in the classroom if things didn't go his way (Tr. pp. 763-64).   The student's mother requested counseling services for the student by letter dated December 5, 2001, to address these issues (Parent Ex. D).  The record does not reflect the outcome of the counseling request, but it does reveal that the student received informal counseling services at school in fifth grade and at other grade levels (Tr. pp. 183, 195, 764-65).

            The student's fifth grade teacher (Tr. pp. 772-73) testified that the student performed on or above grade level, was “very, very smart,” but the student chose not to do work on a number of occasions (Tr. pp. 774-75).  She also testified that she did not make a referral to the CSE during the student's fifth grade year because he was a smart student and was performing well in the classroom (Tr. p. 799).

            The record demonstrates that it was not until the student's sixth grade year at Ross, during the 2003-04 school year, that the student's emotional outbursts escalated (Tr. pp. 821-22, 959). On a few occasions the student refused to go to class because he was unprepared (Tr. p. 823-24).  The student's psychologist testified that the student did well academically at Ross, but had a difficult time transitioning socially at first, which improved over time (Tr. pp. 557-58).  It appears from the record that petitioners' son experienced transitional problems from the public school to the private school.  I agree with the impartial hearing officer in his finding that respondent did not violate its child find obligations under the IDEA to identify the student as needing special education services prior to the 2003-04 school year (see IHO Decision at p. 17).  While there is support in the record to show that the student had difficulties shortly after entering Ross, there is insufficient evidence to show that such deficits adversely affected the student's educational performance before the 2003-04 school year to the extent that special education services were required (8 NYCRR 200.1[zz][4] or 34 C.F.R. § 300.7[c][4][i]).  Accordingly, the record does not afford a basis for classifying the student as a student with a disability prior to the 2003-04 school year (see Carswell v. Catskill Cent. Sch. Dist., ___ F. Supp. 2d ___, No. 1:03-CV-878 [N.D.N.Y. Jan. 31, 2005]; see Application of a Child with a Disability, Appeal No. 02-066).

            The purpose behind the IDEA (20 U.S.C. §§ 1400 - 1487) is to ensure that students with disabilities have available to them a FAPE (20 U.S.C. § 1400[d][1][A]).  A FAPE consists of special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP (20 U.S.C. § 1401[8][D]; 34 C.F.R. § 300.13; see 20 U.S.C. § 1414[d]). A board of education may be required to pay for educational services obtained for a student by his or her parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent's claim (Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359 [1985]).  The parent's failure to select a program approved by the state in favor of an unapproved option is not itself a bar to reimbursement (Florence County Sch. Dist Four v. Carter, 510 U.S. 7 [1993]).  The board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (M.S. v. Bd. of Educ., 231 F.3d 96, 102 [2d Cir. 2000], cert. denied, 532 U.S. 942 [2001]; Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 122 [2d Cir. 1998]; Application of a Child with a Disability, Appeal No. 04-043). 

            To meet its burden of showing that it had offered to a provide a FAPE to a student, the board of education must show (a) that it complied with the procedural requirements set forth in the IDEA, and (b) that the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Bd. of Educ. v Rowley, 458 U.S. 176, 206, 207 [1982]). Not all procedural errors render an IEP legally inadequate under the IDEA (Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]).  If a procedural violation has occurred, relief is warranted only if the violation affected the student's right to a FAPE (J.D. v. Pawlett Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]), e.g., resulted in the loss of educational opportunity (Evans v Bd. of Educ., 930 F. Supp.83, 93-94 [S.D.N.Y. 1996]), seriously infringed on the parents' opportunity to participate in the IEP formulation process (see W.A. v. Pascarella, 153 F. Supp.2d 144, 153 [D. Conn. 2001]; Brier v. Fair Haven Grade Sch. Dist, 948 F. Supp. 1242, 1255 [D. Vt. 1996]), or compromised the development of an appropriate IEP in a way that deprived the student of educational benefits under that IEP (Arlington Cent. Sch. Dist. v. D. K., 2002 WL 31521158 [S.D.N.Y. Nov. 14, 2002]).  As for the program itself, the Second Circuit has observed that "'for an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression'" (Weixel v. Bd. of Educ., 287 F3d 138, 151 [2d Cir. 2002], quoting M.S., 231 F.3d at 103 [citation and internal quotation omitted]; see Walczak, 142 F.3d at 130).  This progress, however, must be meaningful; i.e., more than mere trivial advancement (Walczak, 142 F.3d at 130). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).

          An appropriate educational program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals and short-term instructional objectives related to those needs, and provides for the use of appropriate special education services (Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).  Federal regulation requires that an IEP include a statement of the student's present levels of educational performance, including a description of how the student's disability affects his or her progress in the general curriculum (34 C.F.R. § 300.347[a][1]; see also 8 NYCRR 200.4[d][2][i]).  School districts may use a variety of assessment techniques such as criterion-referenced tests, standard achievement tests, diagnostic tests, other tests, or any combination thereof to determine the student's present levels of performance and areas of need (34 C.F.R. Part 300, Appendix A, Section 1, Question 1).

         An IEP must also include a statement of the special education and related services and supplementary aids and services to be provided to or on behalf of the student, as well as a statement of the program modifications or supports for school personnel that will be provided to the student (34 C.F.R. § 300.347[a][3]; see 8 NYCRR 200.4[d][2][iv]).  Such education, services and aids must be sufficient to allow the student to advance appropriately toward attaining his or her annual goals (34 C.F.R. § 300.347[a][3][i]; see 8 NYCRR 200.4[d][2][iv][a]). 

         An IEP must also include measurable annual goals, including benchmarks or short-term objectives, related to meeting the student's needs arising from his or her disability to enable the student to be involved in and progress in the general curriculum, and meeting the student's other educational needs arising from the disability (34 C.F.R. § 300.347[a][2]; see 8 NYCRR 200.4[d][2][iii]).  In addition, an IEP must describe how the student's progress towards the annual goals will be measured and how the student's parents will be regularly informed of such progress (34 C.F.R. § 300.347[a][7]; 8 NYCRR 200.4[d][2][x]).

            With respect to the student's April 26, 2004 IEP, respondent's CSE recommended that the student be classified as a student with ED and receive 30 minutes of individual counseling per week for the remainder of the 2003-04 school year (Dist. Ex. 11 at p. 1). Moreover, the program offered sixth grade regular education placement at Oysterponds, which provides a small school environment (Tr. p. 354) and a low student to teacher ratio of 13:1 (Tr. p. 166). The IEP contains 12 instructional goals to address the student’s social/emotional needs and provides for individual counseling services to achieve those goals. The goals are appropriate to the student’s identified needs. For example, the goals address self-image and self-confidence, appropriate social skills within the school environment, ability to complete tasks and on-task behaviors, ability to accept authority and interact appropriately with adults and peers, ability to develop effective techniques for dealing with stress and anxiety, taking responsibility for his own behavior, and appropriately dealing with stress. Short-term objectives, within the annual goals, focus on issues, such as completing difficult assignments and homework, following school rules, and accepting responsibility for his actions. The record reflects that petitioners objected to the level of counseling services, but not to the goals. The impartial hearing officer noted that petitioners objected to the level of services in the IEP asserting that counseling should be available full time, on an as needed basis. Given the student's emotional needs at the time of the formulation of the April 26, 2004 IEP, I find that the student's IEP adequately addresses the student's needs concerning the remainder of the 2003-04 school year.  I concur with the impartial hearing officer’s determination and find that the district has met its burden of showing that it offered to provide an appropriate program to petitioners' son.

            Having determined that the challenged IEP was adequate and that respondent has met its burden of proving that it offered to provide a FAPE to the student during the 2003-04 school year, I need not reach the issue of whether or not the private placement was an appropriate placement and the necessary inquiry is at an end (M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 66 [2d Cir. 2000]; Walczak, 142 F.3d at 134; Application of a Child with a Disability, Appeal No. 03-058).

            I have considered petitioners' remaining contentions as well as respondent’s affirmative defenses, and I find them to be without merit.

THE APPEAL IS DISMISSED.