Application of a CHILD SUSPECTED OF HAVING A DISABILITY, by his parents, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the Hastings-on-Hudson Union Free School District
Neal H. Rosenberg, Esq., attorney for petitioners
Girvin & Ferlazzo, P.C., attorney for respondent, Karen S. Norlander, of counsel
Petitioners appeal from the decision of an impartial hearing officer which dismissed their claim that respondent violated its "child find" obligation and denied their request to be reimbursed for their son's tuition costs at the Discovery Academy (Discovery) for a portion of the 2004-05 school year. The appeal must be dismissed.
At the commencement of the impartial hearing on June 10, 2005, petitioners' son was 16 years old and enrolled at Discovery in Provo, Utah, receiving instruction in the tenth grade curriculum (June 10, 2005 Tr. p. 14; see Aug. 2, 2005 Tr. pp. 139-40, 166-70; see Dist. Ex. 18). The Commissioner of Education has not approved Discovery as a school with which school districts may contract to instruct students with disabilities (see 8 NYCRR 200.7[a]). Petitioners unilaterally placed their son at Discovery in February 2005, following the student's successful completion of a drug treatment program at the Ascent Program in Idaho in December 2004 and January 2005 (Aug. 2, 2005 Tr. pp. 139-42). Petitioners voluntarily withdrew the student from respondent's school on December 8, 2004, after the family conducted an intervention which ultimately resulted in the student's admission to the Ascent Program in December 2004 (July 26, 2004 [8:45 a.m.] Tr. pp. 34-47).
According to the record, the student has attended respondent's school since 1994 (Aug. 2, 2005 Tr. p. 178). In the 2002-03 school year, the student entered eighth grade in respondent's middle school (see Dist. Ex. 1 at pp. 3-4). According to his final 2002-03 report card, the student received grades of A's and B's, with a C- in Spanish (Dist. Ex. 1 at p. 3). The report card noted that the student was "capable of doing better," but he failed to "do homework consistently" and assignments were "missing/incomplete" (id.). The student's father testified that his son "wasn't really ever an assiduous homework doer. And so, he would rely on high test scores to keep his average up" (Aug. 2, 2005 Tr. p. 179).
In the 2003-04 school year, the student entered ninth grade at respondent's Hastings-on-Hudson High School (Hastings) (see Dist. Ex. 1 at p. 2). In September 2003, the student missed one week of classes due to illness (Dist. Ex. 19 at pp. 1-4; Aug. 2, 2005 Tr. p. 183). Mid-quarter progress reports for the first quarter of 2003-04 demonstrated that the student failed to complete assignments from when he was absent (Dist. Exs. 21 at p. 1; 4 at p. 1; 5 at p. 1), failed to take advantage of available help and had frequent absences (Dist. Ex. 4 at p. 1). As a result of the student's poor academic performance, respondent placed the student on academic probation in October 2003 (Dist. Ex. 20 at p. 1). Respondent's assistant principal testified that once students were placed on academic probation, students were assigned to Academic Intervention Services (AIS) (July 13, 2005 Tr. p. 118). Respondent's guidance counselor assigned a schedule to the student for extra academic assistance on October 15, 2003, until the student "caught up on his homework and classroom assignments" (Dist. Ex. 19 at p. 5).
Due to the student's academic difficulties, he became ineligible to participate in sports (July 13, 2005 Tr. pp. 122-28; Aug. 2, 2005 Tr. p. 194). Respondent's assistant principal testified that he spoke with the student regarding his ineligibility for basketball and respondent's general policy, and encouraged the student to take advantage of the AIS in order to restore his eligibility for basketball (July 13, 2005 Tr. pp. 122-28). In addition, the assistant principal spoke with the student's father in early November 2003 regarding the student's academic probation and respondent's eligibility policy for participation in sports (July 13, 2005 Tr. pp. 126-27; Aug. 2, 2005 Tr. pp. 232-34; Dist. Ex. 19 at p. 6). The student's father did not raise any other concerns about the student during this conversation (July 13, 2005 Tr. pp. 127-28; see Aug. 2, 2005 Tr. pp. 193-97).
The record indicates that, at the end of the first quarter of the 2003-04 school year, the student's grades improved, his name did not appear on the academic probation list at the end of the first quarter, and he became eligible to participate in basketball (July 13, 2005 Tr. pp. 125-26; Dist. Ex. 20 at pp. 3-4).
Evidence submitted during the impartial hearing indicates that although the student's grades fluctuated for the remainder of the year and respondent placed the student on academic probation on three subsequent occasions (Dist. Exs. 3 at pp. 9, 14-16, 18-19; 21 at pp. 2-4; 22 at pp. 1-3; 20 at pp. 9, 13, 17), the student's final ninth grade report card indicated that he passed all of his classes, except Spanish II (Dist. Ex. 1 at p. 2). "Teacher Comments" on the student's final ninth grade report card included "excessive absences," "fails to complete assignments," "does not work up to ability," "a pleasure to have in class," and "does not turn in assignments" (Dist. Ex. 1 at p. 2). In addition to the academic probations during 2003-04, respondent suspended the student in March 2004 for fighting on school property and June 2004 for skipping school and returning to school grounds under the influence of alcohol (Parent Ex. 2; Dist. Ex. 10). Respondent referred the student to its student assistance counselor regarding the alcohol use and the student attended counseling sessions (Dist. Ex. 10; July 13, 2005 Tr. pp. 158-62).
The assistant principal testified that he did not suspect or observe behaviors that would indicate that the student had emotional problems that interfered with his education (July 13, 2005 Tr. pp. 138-150). During his personal observations and conversations with the student, the assistant principal testified that he viewed the student as "focused" and that he was "participating in class" (July 26, 2005 [8:45 a.m.] Tr. pp. 20-22). Testimony reflects that the assistant principal made these comments after the student's father first advised him in February and/or March 2004 that the student used both drugs and alcohol and after the student returned to school in fall 2004 (July 13, 2005 Tr. pp. 16-17; Aug. 2, 2005 Tr. p. 186). According to testimony by respondent's director of special education and respondent's psychologist, both of whom met with the student's father, neither had been informed by the student's father that the student may have social or emotional problems or needs that were affecting his education, nor about the student's use of marijuana and alcohol until November 2004 (Aug. 2, 2005 Tr. pp. 8-14; September 1, 2005 Tr. p. 28). Testimony from the student's teachers reflects that the student was popular, engaged with other students, and did not present a discipline problem in class (June 10, 2005 Tr. pp. 30, 31, 59, 87, 112, 127; July 13, 2005 Tr. pp. 25-26, 91, 139).
The assistant principal testified that he kept in touch with the student over the summer 2004, and he further testified that student informed him that he was attending basketball camp and that all was going "fine" (July 13, 2005 Tr. pp. 164-65). The student's father testified that his son began tenth grade in 2004-05 "with a lot of optimism" (Aug. 2, 2005 Tr. p. 207). Petitioner's son attended counseling therapy over the summer and the student entered into a contract with petitioners addressing his refraining from alcohol use and keeping his curfew (id.).
By early November 2004, testimony reflects that the student exhibited weight loss and his sleep pattern had changed (July 13, 2005 Tr. p. 33). The student received C's, D's, and an F in math as first quarter grades (Dist. Ex. 1 at p. 1). In November 2004, the student's father, wrote a letter to respondent's director of special education stating: "I am interested in having my son…be investigated for ADD. I believe this is called a 504 hearing. Could you advise me as to how this can be set up with you?" (Parent Ex. 5). According to the director's testimony, she met with petitioner, discussed a number of options including referral to the 504 team, referral to the Committee on Special Education (CSE) or referral to the Instruction Support Team (IST) (Sept. 1, 2005 Tr. pp. 26-27). The director testified that in her conversation with petitioner, he agreed to her suggestion to proceed with an IST meeting to gather facts and information as a first step (Sept. 1, 2005 Tr. p. 27). The director did not consider petitioner's letter and/or her explanation to him as a referral to the CSE (id.). Respondent's psychologist was told to start the IST process (Sept. 1, 2005 Tr. pp. 27-28).
By letter dated November 17, 2004, respondent suspended the student for lighting a firecracker in school (Parent Ex. 3; see Dist Ex. 15). According to petitioner, his son may have been under the influence of alcohol during that incident, but school personnel were not aware of the possible involvement of alcohol because the investigation of the incident did not occur on the day of the incident (Sept. 1, 2005 Tr. p. 12). On November 22, 2004, respondent held a meeting to begin the fact and information gathering as requested by petitioner; the student's parents, respondent's psychologist, respondent's guidance counselor, and the assistant principal attended (Aug. 2, 2005 Tr. pp. 11-23). Discussions revolved around low grades, increased drug and alcohol use, weight loss and poor sleep habits (id.). Petitioner indicated that his son was "stressed" and that his physician had placed him on medication for Attention Deficit Disorder (ADD) (Aug. 2, 2005 Tr. pp. 13-14). Petitioner advised those in attendance that his son had been in counseling with a private therapist and he granted consent to respondent's psychologist to contact the private counselor (Aug. 2, 2005 Tr. pp. 13-15; Dist. Ex. 16 at p. 2). Petitioner also granted consent to respondent's psychologist to conduct evaluations (Aug. 2, 2005 Tr. pp. 13-14; Dist. Ex. 16 at p. 1).
Upon contact, the private counselor indicated that he specialized in drug and alcohol treatment (Aug. 2, 2005 Tr. p. 21). The private counselor told respondent's psychologist that he was very concerned about the student's increased drug and alcohol use, and he had recommended possible psychiatric hospitalization to petitioners for their son (Aug. 2, 2005 Tr. p. 21). The private therapist also stated that petitioners were not supportive of hospitalization at that time and that they were "going to wait it out a bit longer" (Aug. 2, 2005 Tr. pp. 21-22).
On December 8, 2005, the assistant principal—upon request by the student's father—participated in an intervention at the father's home (July 26, 2005 [8:45 a.m.] Tr. pp. 39-44). As a result of the intervention, the student was immediately taken to a local hospital for a drug and alcohol detoxification program (July 26, 2005 [8:45 a.m.] Tr. p. 44; Aug. 2, 2005 Tr. p. 139). For insurance reasons, the student transferred to the Ascent Program in Idaho (Aug. 2, 2005 Tr. pp. 136, 139).
By letter dated March 21, 2005, petitioners requested an impartial hearing alleging that due to the student's academic decline and two suspensions during the 2003-04 school year, respondent "should have been on notice that [the student] was a student at risk and should have been referred for evaluation and special education" and thus, respondent's failure to do so violated its "Child Find" obligation (IHO Ex. 1 at pp. 4-5). Petitioners also requested reimbursement for their son's tuition costs at Discovery for the 2004-05 school year (IHO Ex. 1 at p. 5).
The impartial hearing began on June 10, 2005, and continued for five days, concluding on September 1, 2005 (IHO Decision, p. 2).1 Both parties presented testimonial and documentary evidence.
By decision dated November 10, 2005, the impartial hearing officer dismissed petitioners' claim that respondent violated its "child find" obligation under the Individuals with Disabilities Education Act (IDEA), and denied petitioners' request for tuition reimbursement for the student's attendance at Discovery during 2004-05 (IHO Decision, pp. 21-22). Specifically, the impartial hearing officer determined that the evidence did not support the conclusion that the 'student's behavior should have been regarded by [respondent] as '"serious emotional disturbance," "over a long period of time and to a marked degree, thus, the District did not violate its Child Find obligation by failing to identify and evaluate him as such"' (IHO Decision, p. 21) (citing 20 U.S.C. § 1401[A][i]). The impartial hearing officer concluded that petitioners were not entitled to tuition reimbursement because respondent did not violate its "child find" obligations (IHO Decision, p. 21).
A school district must provide a free appropriate public education (FAPE) to students who have met the criteria for identification as students with disabilities under the IDEA and Article 89 of the New York State Education Law (34 C.F.R. § 300.307; 8 NYCRR 200.1[zz]) Local educational agencies also have an affirmative duty to identify, locate, and evaluate all children with disabilities residing in the state (20 U.S.C. § 1412[a]; 34 C.F.R. § 300.125[a][i]; see 8 NYCRR 200.2[a]).2 A board of education must have procedures in place that will enable it to find such children (Application of a Child with A Disability, Appeal No 04-054; Application of a Child with a Disability, Appeal No. 93-41). The "child find" duty requires referral for an evaluation when the district "has reason to suspect a disability and reason to suspect that special education services may be needed to address that disability" (Dept. of Educ. v. Cari Rae S., 158 F. Supp. 2d 1190 [D. Haw. 2001]; see 8 NYCRR 200.2, 200.4). The provision applies to children who are suspected of being a student 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][ii]; see 8 NYCRR 200.4).
In this appeal, the issue is not whether the procedures were in place, but rather whether, upon the facts presented, the student should have been referred to the CSE for a determination of eligibility for special education programs and services (Application of a Child with a Disability, Appeal No. 05-040; Application of a Child with a Disability, Appeal No. 01-058; Application of the Board of Educ., Appeal No. 00-052). A district's ignorance of a student's possible disability and need for special education will not relieve it of its "child find" obligation if it should have suspected the student had a disability (Application of a Child with a Disability, Appeal No. 05-040; Application of a Child Suspected of Having a Disability, Appeal No. 01-082). Because the "child find" obligation is an affirmative one, the IDEA does not require parents to request that the district evaluate their child (Application of a Child with a Disability, Appeal No. 05-040; Application of a Child Suspected of Having a Disability, Appeal No. 01-082).
Petitioners' claim that respondent failed to satisfy its "child find" obligations. Specifically, they assert that their son should have been referred to the CSE and that the CSE should have classified him as having an emotional disturbance.
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]).
I agree with the impartial hearing officer's conclusion that there was insufficient evidence during the 2003-04 school year and at the time of the student's withdrawal from the school district (1) to suspect that the student had a disability or had reason to suspect that special education services may be needed to address that disability; (2) that the student should have been referred to the CSE; or, (3) that the student should have been classified as having an emotional disturbance.
After carefully reviewing the entire record, I find that the impartial hearing officer correctly held that respondent did not violate its "child find" obligation regarding this student during the 2003-04 school year and, therefore, petitioners are not entitled to tuition reimbursement for the student's attendance at Discovery during 2004-05 (IHO Decision, pp. 3-22). The impartial hearing officer applied the proper legal analysis in determining that respondent did not violate its "child find" obligations under the IDEA when it did not suspect that the student had a disability that required referral of the student to the CSE for a determination of eligibility (20 U.S.C. § 1412[a][A], [B]; 34 C.F.R. § 300.125). She also applied the proper legal analysis in determining that the evidence in the record did not demonstrate that the student had a disability such that he was eligible for special education or that respondent should have known that the student suffered from an "emotional disturbance" (8 NYCRR 200.1[zz]), and in determining that petitioners were not entitled to tuition reimbursement (see Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359 ; Application of a Child with a Disability, Appeal No. 00-008). The decision shows that the impartial hearing officer carefully considered all of the testimony and exhibits from both parties. The record amply supports the impartial hearing officer's conclusion that "the District had no reason to suspect that the student was suffering from a serious emotional disturbance within the meaning of the federal and state regulations implementing the IDEA, or any other disability" (IHO Decision, pp. 21-22).3 I find that the hearing was conducted in a manner consistent with the requirements of due process and that there is no need to modify the determination of the impartial hearing officer (34 C.F.R. § 300.510[b]; Education Law § 4404). I, therefore, adopt the findings of fact and conclusions of law of the impartial hearing officer (see Application of the Bd. of Educ., Appeal No. 03-085; Application of a Child with a Disability, Appeal No. 02-096).
I have considered petitioners' remaining contentions and I find them to be without merit.
THE APPEAL IS DISMISSED.
1 During summer 2005, respondent evaluated the student and determined that he was ineligible to receive special education services and programs (Ex. B attached to respondent's Answer).
2 On December 3, 2004, Congress amended the IDEA, effective July 1, 2005 (see Individuals with Disabilities Education Improvement Act of 2004 [IDEIA], Pub. L. No. 108-446, 118 Stat. 2647 ). Since the relevant underlying events of this appeal occurred prior to the effective date of the 2004 amendments, the new provisions of the IDEIA do not apply, and citations contained in this decision are to the statute as it existed prior to the 2004 amendments.
3 This determination would remain if during the administrative hearing the burden had been placed on the parents, the parties challenging the IEP, as the Supreme Court recently established in Schaffer v. Weast, 126 S. Ct. 528, 537 (2005) (see Application of the Bd. of Educ., Appeal No 05-120).