05-090

            Petitioners appeal from the decision of an impartial hearing officer which found that respondent demonstrated the appropriateness of the determination of its Committee on Special Education (CSE) that petitioners' daughter not be classified as a student with a disability and which denied petitioners' request to be reimbursed for their daughter's tuition and related costs at Oakwood Friends School (Oakwood) for the 2004-05 school year. The appeal must be dismissed

          Petitioners' daughter was nearly 13 years old and was in the seventh grade at Oakwood when the impartial hearing began in May 2005. Oakwood has not been approved by the Commissioner of Education as a school with which school districts may contract to instruct students with disabilities. The student's prior educational history is described in Application of a Child with a Disability, Appeal No. 05-047, and will not be repeated here in detail. That decision dismissed petitioners' appeal from an impartial hearing officer's determination that respondent had met its burden of demonstrating that the student was ineligible for special education and should not be classified as a student with a disability.

        As noted above, this is petitioners' second appeal regarding their daughter's eligibility for classification as a student with a disability. The student was initially referred to respondent's CSE in May 2003 by her parents (Tr. pp. 25, 319). In August 2003, the CSE determined that the student was ineligible for special education (Pet. 18). In September 2003, petitioners placed their daughter at Oakwood for sixth grade for the 2003-04 school year and requested an impartial hearing seeking tuition reimbursement and related costs (Dist. Ex. 13 at pp. 2, 5). A psychiatrist began treating the student in October 2003 (Dist. Ex. 10). By March 2004, the psychiatrist diagnosed the student as having an attention deficit hyperactivity disorder (ADHD) and prescribed medication to treat the disorder (id.).

       The impartial hearing challenging the CSE's August 2003 determination to not classify petitioners' daughter began on June 1, 2004 (Hearing 1), and was pending when the student began seventh grade at Oakwood in the fall of 2004. At the end of July 2004, the impartial hearing officer who presided over Hearing 1 ordered the CSE to conduct additional testing and to reconvene to reconsider its position regarding the student's classification (Dist. Ex. 13 at pp. 2-3). When the CSE reconvened in October 2004 to review the additional testing, it determined that the student was not eligible for classification (Tr. p. 28). Near the end of the October 2004 CSE meeting, the student's mother presented a letter from the student's treating psychiatrist in which the psychiatrist indicated that the student was responding to medication prescribed for ADHD, and that because of the medication, an assessment of ADHD "would not show the full spectrum of symptoms" (Dist. Ex. 10; Tr. p. 28). The psychiatrist advised against discontinuing the student's medication for purposes of evaluation, indicating that this could be "detrimental" to the student (Dist. Ex. 10). The CSE agreed to reconvene to consider whether the student should be classified given her diagnosis of ADHD (Tr. p. 29).

     When the CSE reconvened in November 2004, the student's treating psychiatrist and her academic support teacher at Oakwood participated by phone (Dist. Ex. 14; Tr. p. 30). The CSE recommended a classroom observation and additional updated evaluations to assist in determining whether the student should be classified as a student with a disability (Dist. Ex. 14). It recommended assessments using the Conners' Parent and Teacher Rating Scales (Conners') and the Behavior Rating Inventory of Executive Function (BRIEF) (Tr. p. 31).

      On December 13, 2004, one of respondent's psychologists observed the student at Oakwood during Math, Science, English, and Computer classes and recess (Dist. Ex. 12). The observer reported that the Math class consisted of nine students, four of whom were girls. She noted that the student became slightly restless when the class was asked to solve a problem, but that she asked her teacher for assistance then worked steadily after the teacher moved on. The observer also noted that the student appeared focused when working collaboratively with another student. In Science class, the observer noted that compared to her female peers, the student was focused and on task throughout all the activities. When taking a quiz in English class, the student worked steadily and was one of the last students to complete the quiz. The observer reported that relative to her peers the student did not stand out in any way, nor did she call out or talk with her neighbors. During Computer class the student worked steadily at the computer and did not talk with her neighbors even though a student nearby talked continuously. At recess, the student conversed with her female peers and a teacher in the recess room, then went outside with her group and engaged in an activity until it was time for the next class.

     By letter dated December 9, 2004, but not received by respondent's director of special education until December 14, 2004, petitioners requested an impartial hearing seeking tuition reimbursement for the 2004-05 school year (Dist. Ex. 9). Indicating that their complaints regarding the 2004-05 school year "remain the same as those raised in our hearing request on 2003-04," petitioners referred the director of special education to "all correspondence sent to you last year." Petitioners further indicated that the issue of their daughter's entitlement to classification remained outstanding in 2004-05 as did her "entitlement to an IEP with procedural and substantive mandates." Petitioners also requested that the impartial hearing concerning the 2004-05 school year be consolidated with Hearing 1. Respondent did not consent to the consolidation (Tr. p. 27). After suggesting that the hearing begin on January 4, 2005, the impartial hearing officer granted respondent's request for an adjournment, and the parties agreed to begin the impartial hearing at the end of January 2005 (Dist. Ex. 2).

    CSE meetings scheduled for January 20 and 24, 2005 were rescheduled at petitioners' request (Dist. Exs. 4, 5). By letter dated January 25, 2005, respondent's director of special education scheduled the CSE meeting for February 15, 2005 to consider the student's eligibility for special education (Dist. Ex. 22). In the letter, he advised petitioners that the Weschler Individual Achievement Test – Second Edition (WIAT-II) conducted in May 2003 was rescored to conform to their daughter's actual age at the time because her age had been reported incorrectly when the test was administered. He enclosed the revised individual performance summary report and indicated that it would be reviewed at the meeting along with the results of the Conners' and the BRIEF.

     By letter dated January 27, 2005, petitioners' provided to respondent's director of special education the Conners' Parent Rating Scales - Revised: Long Version which they completed and the Conners' Teacher Rating Scales - Revised: Long Version, which were completed by their daughter's private tutor and her teachers at Oakwood (Dist. Ex. 17). They also provided the BRIEF forms, which they and their daughter's academic support teacher at Oakwood completed (id.). The following day, the impartial hearing officer granted respondent's request for an adjournment of the hearing scheduled for January 31, 2005 to enable the CSE to consider the current assessments (IHO Ex. 3).

      Respondent's CSE met on February 15, 2005 for an evaluation review (Dist. Ex. 14). In addition to information the CSE considered at previous meetings, it reviewed the results of the Conners' and the BRIEF, the classroom observation report, a 2002 Reading Case Study, and the corrected WIAT-II, as well as the student's current report card from Oakwood. The school psychologist who conducted the observation processed the Conners' profiles and feedback forms (Dist. Ex. 18; Tr. pp. 150-51). She reported to the CSE that the student's teachers' endorsements fell mostly within the low average and average moderate range (Dist. Ex. 14). The student's history teacher rated the student in the high problem range in the hyperactive-impulsive area. However, the student's academic support teacher from Oakwood noted that History was the last academic class of the day and opined that the student's medication may be wearing off. The psychologist further reported that the student's mother's endorsements resulted in the student being rated as average or better than average in all areas, while the student's father's endorsements rated the student in the average and better than average range in some areas with the exception of needing improvement in the areas of hyperactive-impulse, restless-impulsive and anxious-shy. An average score is a score of 50 and "areas of significance" begin at a score between 65 and 66 (Tr. p. 153).

    The psychologist also completed the BRIEF interpretive reports and reported the results to the CSE (Tr. p. 159). She indicated that the student's parents endorsed statements that indicated their daughter's executive functioning fell within the average range (Dist. Ex. 14). She further reported that the student's academic support teacher at Oakwood endorsed statements that rated the student's executive functioning as falling within the elevated range in the areas of shifting, initiating, working memory and self-monitoring (id.).

     During the meeting, the student's academic support teacher at Oakwood advised the CSE that although the student's ability and achievement numbers did not meet the "severe discrepancy definition," she believed the student had a learning disability (Dist. Ex. 14). She indicated that the student's grades were not reflective of what was going on in the classroom. She suggested that the CSE consider a classification of learning disabled.

     After considering the information presented at the meeting, the CSE determined that although the student was diagnosed as having an ADHD, she did not demonstrate an educational disability which adversely affected her educational performance (Dist. Ex. 14). Additionally, the CSE determined that the student did not have a severe discrepancy and did not have a learning disability as defined by current laws and regulations.

    At the request of both parties, on February 26, 2005, the impartial hearing officer granted an adjournment for the purpose of exploring settlement (IHO Ex. 2). In March 2005, the impartial hearing officer in Hearing 1 rendered his decision, finding that that the evidence did not indicate that the student was a student with a learning disability, or that her speech-language impairment adversely affected her educational performance, or that her ADHD affected her classroom performance to a degree that it should be considered a disability (Dist. Ex. 13).

    On April 11, 2005 one of respondent's CSE chairpersons advised petitioners that the CSE determined that their daughter did not meet the criteria to be classified as a student with a disability (Dist. Ex. 15).

    The impartial hearing in this matter began on May 11, 2005 continued on May 17 and concluded on June 7, 2005.¹ After testimony was completed, but before the impartial hearing officer rendered his decision, the decision in Application of a Child with a Disability, Appeal No. 05-047 relating to Hearing 1 was issued. On July 22, 2005, the impartial hearing officer in this matter rendered his decision. He determined that there was no basis in the record to conclude that the student was "classifiable as [other health impaired] or learning disabled due to her ADHD condition" and that respondent met its burden of establishing the appropriateness of the CSE's recommendation of "no classification." He further found that there was no basis in the record to conclude that the student was eligible for classification as learning disabled. Having so found, he denied petitioners' request for tuition reimbursement. The impartial hearing officer further found petitioners' claim that respondent violated the child find requirements of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. § 1412[a][3]²; 34 C.F.R. § 300.125) to be without merit.

    Petitioners appeal from the impartial hearing officer's decision. They claim that respondent denied them access to the IDEA. Additionally, petitioners contend that respondent violated the IDEA's child find requirements "by refusing to comply with the referral procedures and to classify [their] daughter." Petitioners also claim that the impartial hearing officer's decision was "defective and arbitrary in its declaration that [the student] was not eligible for IDEA 'classifications.'"

    With respect to petitioners' child find claims, the 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]). The child find requirements apply 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 requirements, 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).

    Petitioners assert that on multiple occasions, respondent was put on notice of their daughter's disabilities. They claim that respondent acknowledged their daughter's need for special education, provided it to her, but refused to classify her in an effort to circumvent the IDEA. To support their claim, petitioners submitted documents relating to the 2002-03 school year when their daughter was in the fifth grade at respondent's middle school (Parent Exs. D, G). The impartial hearing officer found petitioners' child find claim to be without merit, indicating that the claim should have been raised at Hearing 1. I note that the impartial hearing officer in Hearing 1 identified the initiation of a referral of the student as an underlying issue in that matter (Dist. Ex. 13 p. 6). He addressed the issue and concluded that "a full and complete evaluation should have been done long before the time it was finally accomplished." As the impartial hearing officer in Hearing 1 addressed respondent's duty to refer and evaluate the student during the same time frame that petitioners raise here, I will not consider that claim. Petitioners may not re-litigate issues which have been decided in a prior proceeding (Application of a Child with a Disability, Appeal No. 05-056; Application of a Child with a Disability, Appeal No. 97-83; Application of a Child with a Disability, Appeal No. 95-54).

    Petitioners also claim that respondent violated IDEA's child find requirements by failing to consider "the referral made by a hearing officer" within the required time frame. Specifically, petitioners claim that respondent failed to show that its CSE adequately evaluated their daughter prior to the beginning of school in September 2004, that the CSE did not complete the evaluation process until February 2005, and did not notify them of its recommendation until April 2005. They assert that the July 20, 2004 order by the impartial hearing officer in Hearing 1 requiring the CSE to conduct additional testing constituted a referral of their daughter to the CSE. To support their position that their daughter was referred to the CSE by the impartial hearing officer in Hearing 1, they cite to page 6 of the decision in Application of a Child with a Disability, Appeal No. 05-047. Petitioners' reliance on Application of a Child with a Disability, Appeal No. 05-047 is misplaced. On page 6 of that decision I discuss the July 20, 2004 order by the impartial hearing officer in Hearing 1, but I do not find that his order was a referral. As there is no written referral in the record before me (see 8 NYCRR 200.4[a]), I find that the evidence does not support petitioners' claim. Moreover, because Application of a Child with a Disability, Appeal No. 05-047 was issued on June 24, 2005 after the final hearing session in Hearing 1, a claim based upon alleged findings in that decision could not have been raised at the hearing below and is not properly before me. In any event, the record shows that the CSE was advised of the student's ADHD diagnosis in October 2004, convened with the treating psychiatrist participating by telephone in November 2004, conducted an observation and additional assessments in December 2004 and January 2005, then met in February 2005 for an evaluation review.

     Petitioners also claim that respondent violated the IDEA by failing to classify their daughter as a child with a disability. A board of education bears the burden of establishing the appropriateness of its CSE's determination that a student not be classified as a student with a disability (Application of the Bd. of Educ., Appeal No. 04-042; Application of a Child Suspected of Having a Disability, Appeal No. 03-063; Application of a Child Suspected of Having a Disability, Appeal No. 02-085; Application of a Child Suspected of Having a Disability, Appeal No. 00-001). 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 (Application of a Child Suspected of Having a Disability, Appeal No. 04-063; Application of a Child Suspected of Having a Disability, Appeal No. 04-059; Application of a Child Suspected of Having a Disability, Appeal No. 00-036; Application of a Child Suspected of Having a Disability, Appeal No. 00-002). 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]; Application of a Child Suspected of Having a Disability, Appeal No. 04-063; Application of a Child Suspected of Having a Disability, Appeal No. 04-059; Application of the Bd. of Educ., Appeal No. 01-022; Application of a Child Suspected of Having a Disability, Appeal No. 00-002). Applicable federal regulations provide that when evaluating a child suspected of having a specific learning disability, at least one CSE member, other than the child's regular teacher, must observe the child's academic performance in the regular classroom setting (34 C.F.R. § 300.542; 8 NYCRR 200.4[b][6][xiv]).

      In order to be classified as a child with a disability under federal regulation (34 C.F.R. § 300.7[a][1]) or its state counterpart (8 NYCRR 200.1[zz]), 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).

     The record shows that when the CSE met in February 2005 to review the evaluations it conducted after being advised that the student was diagnosed as having an ADHD, it concluded that the student did not have a disability which adversely impacted her educational performance. In addition to other information it considered in making its determination, the CSE reviewed the December 2004 classroom observation. The school psychologist who conducted the observation testified that the student's attention appeared to be average compared to the group, and that she did not stand out in any noticeable, important way from her peers (Tr. pp. 174-75). She further testified that the student appeared to be well-integrated into the classes and that she appeared to be accepted by both her female and male peers (Tr. p. 172).

     The school psychologist also processed the Conners' profiles and feedback forms which were reviewed at the February 2005 CSE meeting. She testified that the Conners' measures observable behavior and is generally used when there is a question regarding attention or impulsivity (Tr. p. 149). She further testified that the majority of the teachers' responses fell within the average range, with the exception of two teachers who rated the student's behavior as a mild area of concern in some categories (Tr. pp. 152-53). The school psychologist stated that at the time the student was being evaluated by her teachers, the student would not be considered to be exhibiting behaviors consistent with ADHD (Tr. p. 157). The school psychologist also testified about petitioners' responses (Tr. p. 151). She stated that the student's mother's endorsements indicated that the student's behavior was in the average range, while the student's father's endorsements indicated that the student exhibited "some significant areas of behavior that fell outside of the average range" (Tr. pp. 151-52). She explained that when drawing conclusions from the contrasting responses of the parents, she would consider the amount of time and conditions under which the parent sees the child (Tr. p. 152).

     The school psychologist also processed the BRIEF (Tr. p. 160). She testified that the results indicated that petitioners find their daughter to have executive functions that fall within the average range of functioning ( id.). She further testified that the BRIEF results indicated that the academic support teacher at Oakwood found the student to have difficulty in the areas of shifting, initiating, working memory and self-monitoring (Tr. p. 164). She opined that the parents' results differed from the academic support teacher's results because the academic support teacher works with the student in the areas that the student has difficulty (Tr. pp. 164-65). As noted above, the impartial hearing officer found that there was no basis in the record to conclude that the student was eligible for classification due to her ADHD. I agree. I note that in Application of a Child with a Disability, Appeal No. 05-047, I found that the student was not eligible for classification as a student with a disability. The only new, current information related to the student's ADHD diagnosis in the record before me here is the classroom observation, and the Conners' and BRIEF assessments, none of which indicate that the student's ADHD adversely impacts her educational performance to the extent that she requires special services and programs.

     Similarly, the record does not support a learning disability classification. The record shows that at the suggestion of the student's academic support teacher at Oakwood, the CSE again considered whether the student met the criteria for classification as having a learning disability, despite having considered the same classification four months earlier. It reviewed the corrected WIAT-II along with the other information available and again determined that the student did not have a severe discrepancy between achievement and intellectual ability. I note that the student's academic support teacher at Oakwood acknowledged that the student's "numbers" did not reflect a severe discrepancy between her achievement and ability. Based upon the information before me, I find that respondent met its burden of establishing the appropriateness of its CSE's determination that the student not be classified as a student with a disability. As the student is not eligible for classification as a student with a disability, petitioners request for tuition reimbursement is denied. The remedy of tuition reimbursement is available for a student who is entitled to receive a free appropriate public education pursuant to IDEA.

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

THE APPEAL IS DISMISSED.