Application of the NEW YORK CITY DEPARTMENT OF EDUCATION for review of a determination of a hearing officer relating to the provision of educational services to a child suspected of having a disability
Michael Best, Special Assistant Corporation Counsel, attorney for petitioner, Hilary Steuer, Esq., of counsel
Educational Advocacy Service, attorney for respondent, Anton Papakhin, Esq., of counsel
Petitioner, the New York City Department of Education, appeals from the decision of an impartial hearing officer which found it failed to offer an appropriate educational program to respondent's son and ordered it to reimburse respondent for her son's residential tuition costs at the Family Foundation School (Family Foundation) for the period from February 16, 2006 through August 2006. Petitioner also appeals from the impartial hearing officer's determinations a) that the student is eligible for special education as a student with an emotional disturbance and b) that respondent's Committee on Special Education (CSE) erred in not recommending classification of the student. The appeal must be sustained in part.
Respondent's son was 16 years old and attending ninth grade at Family Foundation at the commencement of the impartial hearing on June 19, 2006 (Tr. pp. 161-62; see Parent Ex. B at p. 1). Respondent unilaterally enrolled her son in that school on February 16, 2006 (see Tr. pp. 194-95; see also Parent Ex. O at p. 2). Family Foundation has not been approved by the Commissioner of Education as a school with which districts may contract to instruct students with disabilities (see 8 NYCRR 200.1[d], 200.7]). The student's eligibility for special education as student with an emotional disturbance (see 8 NYCRR 200.1[zz]) is in dispute in this appeal.
The student's cognitive functioning is in the average range (see Parent Ex. E at pp. 4, 5, 9). A July 2004 audiological evaluation report indicated that, as early as September 2002, the student was evaluated and diagnosed with a sensorineural hearing loss in both ears (Parent Ex. G at p. 2). On February 2, 2006, a private licensed bilingual clinical psychologist diagnosed the student with conduct disorder, mood disorder NOS (not otherwise specified), general anxiety disorder, an attention deficit hyperactivity disorder (ADHD) - combined type, and cannabis abuse by history (see Parent Ex. E at pp. 1, 12; Tr. pp. 326-27.). A private psychiatrist evaluated the student on February 6, 2006 (see Parent Ex. F at p. 3) and reported that the student presented with a long history of emotional and behavioral problems preceding drug use (id.). The student reported marijuana and alcohol abuse beginning at age 14 and cocaine use at age 15 (see Parent Ex. F at p. 2).
The student and his family immigrated to the United States when the student was eight years old (Tr. p. 109). Once in the United States he began second grade at petitioner's Public School (P.S.) 52 (id.). Respondent testified that she was frequently called to school because of the student's misbehavior, which included episodes of aggression (Tr. p. 110).
Respondent enrolled her son at a private academy for third, fourth, and fifth grade (Tr. pp. 111, 139). Respondent hoped that smaller classes and an opportunity for more attention at the academy would help the student (Tr. p. 111). According to respondent, the student passed all of his classes at the academy but his teachers reported to her that her son needed to study and concentrate more (Tr. p. 140). At the end of fifth grade the student was not allowed to return to the academy for sixth grade because of an incident with another student (see Tr. pp. 140-41).
The student attended sixth grade at a parochial school during the 2002-03 school year (Tr. p. 141). Respondent indicated that although her son "knew the academic requirements" (Tr. p. 143), he failed many tests, lacked concentration, did not do homework, and did not study. The parochial school recommended that he repeat sixth grade (Tr. pp. 112, 142).
Rather than allow the student to repeat sixth grade, respondent enrolled her son in petitioner's Intermediate School (I.S.) 303 for the 2003-04 school year, where he was tested (Tr. p. 144) and promoted to the seventh grade (Tr. p. 142). Initially, the school placed the student in departmentalized classes with 20 or more students in each class (Tr. pp. 145, 146). However, the student was disruptive during class time and he was transferred to a self-contained general education classroom (Tr. p. 146). The classroom was located next to the school's security office and consisted of ten to fifteen students, a teacher and another staff person (Tr. pp. 113, 149, 173-74, 252, 293; Parent Ex. L). The student's final grades at the end of seventh grade included 65 for English 7 and Science 7, 85 for Reading Enrichment, 77 for Math 7, 85 for Art, a P (passed or proficient) for Media Art 7, and 95 for Physical Education (Parent Ex. M at p. 5). The student failed Social Studies and did not receive a grade for Spanish (Parent Ex. M at p. 5; see also Tr. pp. 151, 280).
A private board certified and licensed audiologist conducted an audiological evaluation of the student in July 2004 (see Parent Ex. G). The evaluator determined that the student had a moderate sensorineural hearing loss in his left ear, and a mild to severe sensorineural hearing loss in his right ear (Parent Ex. G at p. 2). The evaluation report noted that the student "can be expected to experience difficulty understanding speech even under optimal listening conditions" and further noted that "[u]pon the presence of distant speech or competing background noise" the student's "ability to discriminate speech would diminish accordingly" (id.). The report recommended "an annual audiological evaluation to rule out progression, or sooner should a change in hearing sensitivity be perceived" (id.).
For eighth grade during the 2004-05 school year the student remained in the same small, general education self-contained classroom at I.S. 303 (see Tr. pp. 149, 150, 171; Parent Ex. L). Although the record does not indicate when, respondent testified that she advised the student's teachers at I.S. 303 of her son's hearing problems (Tr. pp. 175, 182).
The record indicates that the student's grades at the end of the second reporting period of that year included 65 for Social Studies 8, 70 for English 8, and 80 for Math 8 (Parent Ex. M at p. 3). The student failed Science and did not receive a grade for Spanish. (Parent Ex. M at p. 3; see also Tr. pp. 151, 280). According to the student's cumulative record, he was absent on 26 school days and late on another 29 days during that school year (Parent Ex. M at p. 2). Further, respondent reported that the student's teacher called her between five and ten times a month to come and take the student home from class because of his behavior (Tr. pp. 170-71). The classroom teacher who taught the student in the second half of the seventh grade and during the eighth grade reported that the student's "poor behavior" consisted of unexcused absences from school even after being escorted by a family member to the front door of the school; being verbally rude or disrespectful towards teachers and other adults in the building; using profane, obscene, vulgar, lewd and abusive language or gestures; leaving class or school premises without permission; being habitually late to school or class; disrupting the class lesson, bullying and intimidation; intentional destruction of school property; defying or disobeying the authority of school personnel; and using slurs based upon race, ethnic background, or gender (Parent Ex. L).
During the eighth grade, the student's classroom teacher suggested that respondent and her son "go to Family Court" (Tr. pp. 114-15, 150, 166). Respondent did so and the student was referred to the Jewish Board of Family and Children's Services (Family and Children's) (Tr. pp. 114-15; see also Parent Exs. I, J), where he was provided with individual and family therapy starting in the beginning of 2005 (Tr. p. 115; Parent Exs. I, J) and apparently continuing until some time prior to February 2006 (see Parent Ex. E at p. 2, Dist. Ex. 1 at pp. 2-3; Tr. pp. 343, 346-47).
In fall 2005, the student was enrolled in ninth grade at petitioner's Abraham Lincoln High School (Lincoln) (Tr. pp. 117, 153). He "rarely" attended classes, even with respondent escorting him to the school building (Tr. p. 117; Parent Ex. K; see Parent Ex. M at p. 1; see also Tr. pp. 152-53). On November 5, 2005 the student was hospitalized for three days due to an overdose of alcohol and another unknown substance (Parent Ex. I; Tr. p. 118; see also Tr. p. 154); Tr. p. 118). It appears that the student returned to Family Court that fall and reportedly was adjudicated a person in need of supervision (PINS) (see Tr. p. 154; Parent Ex. F at p. 2).
The Family Court referred the student to Touchstone Hall (Touchstone), a private, residential program in New Jersey for students with psychological and substance problems (see Tr. pp. 119-20; 154-55, 348-50; see also Parent Ex. at F. at pp. 1, 2). The student started at Touchstone in December 2005 but eloped from that program in January 2006 (Tr. pp. 120, 155-56; see alsoParent Ex. F at p. 2) and was subsequently admitted to a hospital "for people with mental issues, psychological problems" (Tr. p. 120; see also Tr. at p. 156). The student's mother removed him from that hospital (Tr. p. 120; see also Tr. p. 156) and attempted to return him to Touchstone, but that facility would not readmit him (Tr. p. 120). The student returned home and respondent reported that he stayed home because he was afraid that he would be "sent somewhere and he would run away" again (Tr. pp. 122; 159-60).
Respondent testified that in January 2006 she was contacted by school personnel regarding her son's attendance at school (Tr. pp. 158-59). Respondent learned of possible schools, including Family Foundation, from acquaintances (Tr. pp. 122, 123). Respondent visited Family Foundation in January 2006 (Tr. pp. 123-25).
With the assistance of her advocate's office, on January 19, 2006, respondent wrote a letter to the chairperson of petitioner's CSE for her area (see Parent Ex. H; Tr. pp. 159, 161). In that letter, respondent advised petitioner that her son had been diagnosed with emotional disorders, that he had hearing problems and that he had begun to use controlled substances (Parent Ex. H). Respondent requested that petitioner "take immediate action for a CSE review" and asked that it "schedule an emergency CSE review" (id.). She also advised petitioner that her native language was Russian and that she would need an interpreter (id.). She also advised petitioner that her son would be "tested on the emergency basis" and his evaluation would be submitted to the CSE (id.). She wrote the CSE that her son "desperately needed" a residential program with an intensive therapeutic component and that because of her son's emergency situation she would be placing him "in the [sic] therapeutic residential school for emotionally disturbed adolescents." (id.)
By notice of referral dated February 2, 2006, petitioner acknowledged receipt of respondent's referral to its CSE to determine the student's educational needs and whether special education services were necessary (Parent Ex. C). Among other things, the notice informed respondent that it would be necessary for the student to be evaluated, that her consent to the evaluation would be sought, that petitioner wished to obtain background information (a social history) about the student, and that a social worker would contact her to arrange a mutually convenient date for a meeting (id.).
A private licensed clinical psychologist conducted a bilingual (Russian and English) psychoeducational evaluation of the student on January 23 and February 2, 2006 (see Parent Ex. E; Tr. pp. 326-27). Administration of the Wechsler Intelligence Scale for Children - Fourth Edition (WISC- IV) yielded a full scale IQ score of 93 (percentile rank of 32), placing the student in the average range of intellectual functioning (Parent Ex. E at pp. 3, 4). The evaluator noted a relative weakness in the student's verbal comprehension domain where his performance yielded a composite score of 77 (percentile rank of 6), which was in the borderline range (Parent Ex. E at pp. 3, 4). The evaluator indicated that while the student demonstrated average range ability on the similarities subscale and low average range ability as measured by the vocabulary subscale, the student's weakest area within the verbal comprehension domain was his common sense and practical judgment measured by the comprehension subscale, which were in the borderline range (Parent Ex. E at pp. 3, 4). He noted that the student's relative deficit in, and poor understanding of, social norms was consistent with his behavior (Parent Ex. E at pp. 4, 9). The evaluator also noted the student's strength in the working memory domain, where his performance yielded a composite score of 129 (percentile rank of 97) which was in the superior range (Parent Ex. E at pp. 3, 4). The evaluator stated that the student's performance on the WISC-IV was not indicative of a learning disability (Parent Ex. E at p. 4). Administration of the Woodcock Johnson - III Tests of Achievement (W-J III) yielded results indicating that the student's overall academic skills were within the high average range (Parent Ex. E at p. 5). The evaluator also noted that results of the W-J III did not indicate the presence of a learning disability (Parent's Ex. E at p. 5).
The evaluating psychologist diagnosed the student with mood disorder NOS; generalized anxiety disorder; conduct disorder; ADHD, combined type; and concluded cannabis abuse by history (Parent Ex. E at pp. 9-10, 12). The psychologist expressed the opinion that the student should be classified as emotionally disturbed (Parent Ex. E at p. 11). He recommended that the student be referred to an academically-based structured residential school on the basis that the student required a supportive, consistent, controlled environment with 24 hours per day structure and built-in therapeutic support in order to make reasonable academic and emotional progress in his life (Parent Ex. E at p. 12). The psychologist also recommended a further psychoeducational evaluation in a year to monitor the student's progress (id.).
A private psychiatrist evaluated respondent's son on February 6, 2006 (see Parent Ex. F). He indicated that the student had a long history of emotional and behavioral problems preceding drug abuse and that "it appeared that the student's drug use was an attempt to self-medicate in order to control his mood swings and deregulated sleep" (Parent Ex. F at p. 3). The psychiatrist diagnosed the student with ADHD, mood disorder NOS, conduct disorder, and cannabis abuse (id.). He recommended placement in "a very highly structured therapeutic program, such as a residential program with 24 hours a day structure and supervision" as necessary in order to control the student's mood problem and impulsive behavior (id.). The psychiatrist also recommended psychopharmacological treatment to address the student's ADHD symptoms and mood problems, and ongoing individual counseling (Parent Ex. F at p. 4).
The student enrolled in Family Foundation on February 16, 2006 ( Tr. pp. 194-95; Parent Ex. O at p. 2).
Petitioner's social worker spoke with respondent and prepared a social history dated March 13, 2006 (see Dist. Ex. 1 at pp. 1, 2). Petitioner's CSE convened on March 30, 2006 for an initial review of the student (Parent Ex. B at p. 1; Tr. pp. 238-39). Attendees at the CSE meeting included the student's mother and her attorney; the social worker for petitioner's hard of hearing and vision impaired (HHVI) students, who served as the district representative; a special education teacher; a bilingual school psychologist; a parent member; and another social worker (seeParent Ex. B at p. 4; Tr. pp. 164, 237-39, 248-49, 252, 264). Petitioner's school psychologist indicated that its HHVI social worker attended the CSE meeting "due to the [student's] reported hearing loss" and "in order to address any of those concerns" (Tr. p. 248). Petitioner concedes that a general education teacher did not attend the CSE meeting (Pet. ¶ 49; see also Parent Ex. B at p. 2). The school psychologist testified that he had not met or tested the child (Tr. p. 289) and neither of the social workers who attended the meeting was the social worker who had met with respondent and prepared the social history (compare Parent Ex. B at p. 2 with Dist. Ex. 1 at p. 3; Tr. p. 135).
The record is not clear regarding the specific documents the CSE reviewed and considered at its March 30, 2006 meeting. The testimony of petitioner's school psychologist indicates that the CSE reviewed at least a November 16, 2005 "to whom it may concern letter" from Family and Children's, the February 2, 2006 psychological evaluation report, the February 6, 2006 psychiatric evaluation report, a social history, and the student's grade reports from I.S. 303 (Tr. pp. 239-40, 242, 279-80, 283). It is unclear whether the CSE reviewed the student's July 2004 audiological evaluation report (see Parent Ex. G) and the extent to which it discussed the student's hearing loss (see Tr. pp. 238, 247-48). The CSE did not request that the student obtain an updated audiological evaluation (see Parent Ex. B at pp. 1, 2, 5; see Dist. Ex. 2 at p. 1).
During the course of its meeting, the CSE spoke on the telephone with a Central Based Support Team (CBST) coordinator and the pupil accounting secretary at I.S. 303 (Tr. pp. 168, 238, 248-49, 264; Parent Ex. B at p. 2). The pupil accounting secretary indicated to the CSE that the student had experienced a significant amount of lateness and absences from school in the 2004-05 school year and that respondent's son was enrolled in a general education program during the 2003-04 and 2004-05 school years (Tr. p. 252; Dist. Ex. 2 at pp. 1-2). The school psychologist reported that the CBST coordinator was in agreement that a day or residential placement for a student with truancy and drug problems would not be appropriate and that she felt that a day or residential placement would be inappropriate for respondent's son at this time (Tr. pp. 249, 250, 253; Dist. Ex. 2 at p. 2). However, that person did not review any of the evaluations with respect to the student (Tr. pp. 265, 270).
During the CSE meeting, respondent indicated to the CSE that she believed that the student should be appropriately placed in a residential setting and was "very upset" and disagreed with the decision not to recommend such a placement for her son (Tr. pp. 133-34, 136, 165, 167-68).
The CSE determined that the student was "non-handicapped" and that he should remain in general education (Parent Ex. B at p. 1; Dist. Ex. 2 at p. 1; Tr. pp. 254, 276; Parent Ex. D). The CSE believed that the student was socially maladjusted because he exhibited truant behavior and drug use, that these considerations affected his academic performance, that his behavior would not seriously interfere with instruction but for those conditions, and that the student was not a student with an emotional disturbance (see Parent Ex. B at pp. 1, 4; Tr. pp. 246-47, 276-77, 287). Although represented by counsel at the CSE meeting, the record does not indicate that respondent objected to the composition of the CSE or raised other procedural concerns at the CSE meeting.
By notice dated the day of the CSE meeting, petitioner advised respondent that as a result of the meeting the student was found "not in need of special education services" and that he "should remain in general education" (Parent Ex. D).
By letter from her attorney dated March 30, 2006 and faxed to petitioner on April 5, 2006 (Parent Ex. A at p. 1; IHO Decision, p. 2), respondent requested an impartial hearing. The letter asserted that petitioner's CSE "committed numerous procedural and substantive errors in their [sic] decision not to classify the student with [sic] emotional disability." The letter set forth that these errors "included but were not limited to" a failure to include the student's teachers from Family Foundation at the CSE meeting; a failure to conduct the required classroom observation, a "failure to formulate the appropriate goals at the review;" a "failure to conduct the required [functional behavioral assessment] and [behavior intervention plan];" a failure to include at least one regular education teacher at the review; a failure to provide a meaningful participation of a parent member; a failure to give due consideration to the recommendation of independent experts who evaluated the student; a failure to consider a social history report; a failure to consider a psychiatric report submitted by respondent; a failure to provide the parent with a Russian interpreter at the meeting; and that the decision not to classify the student was not reached by a consensus of the members present at the CSE meeting (see Parent Ex. A at p. 2).
Respondent's impartial hearing request also set forth that her son met the definition of emotional disturbance under the Individuals with Disabilities Education Act (IDEA), that petitioner did not offer the student an appropriate program for the 2005-06 and 2006-07 school years, and that the student required a therapeutic residential setting in order to make reasonable academic, social, and emotional progress (Parent Ex. A at pp. 2, 3).
The request for an impartial hearing additionally asserted that Family Foundation was appropriate and necessary for the student, that the parent cooperated with the CSE, and that respondent was entitled to tuition reimbursement for that school from February 2006 through June 2007 (Parent Ex. A at p. 3).
The impartial hearing commenced on June 19, 2006, and concluded on June 26, 2006. The impartial hearing officer rendered a decision dated July 13, 2006 (IHO Decision, p. 13). The impartial hearing officer found that a general education teacher of the student was not present at the CSE meeting as required (IHO Decision, p. 8). He also concluded that the parent was actively involved in the CSE meeting and that she was fully advised by her attorney who acted as an interpreter and represented her interests at the meeting. As a result, the impartial hearing officer "[did] not find that [respondent] was prejudiced by not having an interpreter at the CSE meeting" (id.) Based on his review of record evidence, the impartial hearing officer also found that the student should have been classified as emotionally disturbed (IHO Decision, pp. 3, 9, 10), that he should have been recognized as such at I.S. 303 (IHO Decision, p. 11), that "the classification and placement" at the meeting was "inadequate and inappropriate" and that the student did not receive a Free Appropriate Public Education (FAPE) (IHO Decision, p, 11; see also IHO Decision, pp. 8, 9). He further found that Family Foundation was an appropriate placement (IHO Decision, p. 11) and that there were no equitable considerations that would preclude respondent's entitlement to tuition reimbursement (IHO Decision, p. 12).
The impartial hearing officer ordered petitioner to reimburse respondent for residential tuition costs at Family Foundation for the period February 16, 2006 to May 31, 2006, and for the months of June, July, and August 2006 upon submission of a statement or invoice as the tuition became due, proof of payment, and proof of attendance by the student (IHO Decision, p. 13). He also ordered that the CSE reconvene and "create an IEP that is consistent with [his] decision, keeping in mind that the [Family Foundation] program is an 18-month program that should not be prematurely terminated" (id.). He further ordered that the student be evaluated for an auditory disability (id.).
Petitioner appeals on the basis that the student "was correctly classified as non-handicapped by the CSE" and that the absence of a regular education teacher at the CSE meeting was "a de minimus violation," that respondent has not shown that Family Foundation is an appropriate placement, that equitable considerations preclude an award of tuition reimbursement, and that the impartial hearing officer's order that the CSE reconvene and develop "an individualized education program (IEP) that is consistent with [his] Decision, keeping in mind that the [Family Foundation] program is an 18-month program that should not be prematurely terminated" exceeded the scope of his authority. In the event that the absence of a regular education teacher at the CSE meeting is not found to be a de minimus violation, respondent sets forth that the proper remedy is to remand the matter to the CSE to reconsider the evaluative data and to classify and place the student accordingly. Petitioner does not appeal the impartial hearing officer's order that respondent's son "should be evaluated as to an auditory disability."
A central purpose of the IDEA (20 U.S.C. §§ 1400 - 1482)1 is to ensure that students with disabilities have available to them a FAPE (see Schaffer v. Weast, 126 S. Ct. 528, 531 ; Bd. of Educ. v. Rowley, 458 U.S. 176, 179-81, 200-01 ; Frank G. v. Bd. of Educ., 459 F. 3d 356, 371 [2d Cir. 2006]; 20 U.S.C. § 1400[d][A]). A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a written IEP (20 U.S.C. §§ 1401[D], 1414[d]).2
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. 05-047); 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). A "full and individual" evaluation must be conducted (20 U.S.C. § 1414[a][A]) and must include at least a physical examination, an individual psychological evaluation (unless a school psychologist assesses the child and determines that such an evaluation is unnecessary), 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]; Application of a Child Suspected of Having a Disability, Appeal No. 05-047; Application of a Child Suspected of Having a Disability, Appeal No. 04-063). The child must be assessed in all areas related to the suspected disability (20 U.S.C. § 1414[b][B]; 8 NYCRR 200.4[b][vii]), including if appropriate health, vision, hearing, social and emotional status, general intelligence, academic performance, communicative status, and motor abilities (8 NYCRR 200.4[b][vii]). The evaluation must be sufficiently comprehensive to identify all of the child's special education needs, whether or not commonly linked to the disability category in which the child has been identified (8 NYCRR 200.4[b][ix]).
The CSE shall review existing evaluative data on the child, including information provided by the parents, current classroom tests and teacher or therapist reports, and based on that review and input from the parents, determine if any additional information is necessary, and if not shall then determine whether or not the child is a child with a disability and the educational needs of the child (20 U.S.C. §§ 1414[b][A] and [c]; 8 NYCRR 200.4[b], 200.4[c]). If the CSE determines that the child is a child with a disability the CSE shall develop an IEP for the child (see 20 U.S.C. § 1414[d] and ; 8 NYCRR 200.4[d]). In order to be classified as a child with a disability under federal or state law, a student must not only have a specific physical, mental or emotional condition, but such condition must adversely impact upon a student's educationalperformance to the extent that he or she requires special services and programs (20 U.S.C. § 1401; 8 NYCRR 200.1[zz]).
The impartial hearing officer concluded that petitioner's CSE was improperly constituted and then proceeded to review the record relating to the CSE's determination whether respondent's son was a student with an emotional disturbance (see IHO Decision, pp. 9-11). In light of the record in this matter, I agree with petitioner that the impartial hearing officer should have referred the matter back to petitioner's CSE for a determination of eligibility. There is insufficient information in the record to determine whether or not the student could be classified as a student with an emotional disturbance. The impartial hearing officer acted prematurely in making a determination regarding the student's classification in light of the absence of critical information.
The student's hearing loss, and its impact on the student's functional needs, was given inadequate consideration by the CSE, by the private psychologist and psychiatrist, and by the impartial hearing officer to such an extent that a determination that the student requires special education as a result of an emotional disturbance is not supported by a preponderance of evidence in the record. I note that the student had not used the amplification device recommended for his hearing condition at petitioner's school and through at least June 2005 (Tr. pp. 174-76, 178-80; Parent Ex. B at p. 4; Parent Ex. G at p. 2), that the student had reported to the evaluating psychiatrist that he had difficulty adjusting to the ninth grade in a much larger school (Parent Ex. F at p. 2), that the psychiatrist concluded that the student appeared to experience social anxiety in an overcrowded environment (id.), and that subsequent to his enrollment in the larger high school, the student's attendance significantly deteriorated (Parent Ex. F at p. 2; Parent Ex. K; Parent Ex. M at p. 1; Tr. p. 117). The student's lack of use of recommended assistive technology, his ability to hear in a noisy, large school environment, his increasing poor attendance and his anxiety were not evaluated taking into consideration his hearing limitations and the subsequent impact on his educational performance. I note also that an observation of the student in his current educational setting and information from his current teachers at Family Foundation and information from his most recent public school general education teacher would have likely provided important information pertaining to the student's in-school behavior in relation to his ability to hear. Significantly, even though the audiologist who conducted the student's July 2004 audiological evaluation recommended that it be repeated the next year to rule out progression of the student's hearing loss (Parent Ex. G at p. 2), neither the CSE nor the impartial hearing officer had the benefit of an updated evaluation of the student's hearing. I also note here that the CSE's review form understates the results of that July 2004 evaluation (compare Parent Ex. G at p. 2 with Parent Ex. B at p. 5).
Finally, I note that neither the psychoeducational evaluation (Parent Ex. E) nor the psychiatric evaluation (Parent Ex. F) considered the effect of the student's hearing loss on his ability to function in his educational environment or, in fact, even mentioned the student's hearing deficit. I also note that the testimony of the evaluating psychologist at the impartial hearing also did not address this significant issue (see Tr. pp. 309-65).
Upon remand, as part of its consideration of whether the existing evaluative data and any other information submitted to it shows that respondent's son is a student with a disability, petitioner's CSE should take into account the information that it obtains as a result of the audiological evaluation ordered by the impartial hearing officer. I note here that no party appealed from this part of the impartial hearing officer's determination and that part of the decision is final and binding (8 NYCRR 200.5[j][v]; Application of a Child with a Disability; Appeal No. 04-061; Application of a Child with a Disability, Appeal No. 04-018; Application of the Board of Educ., Appeal No. 03-110; Application of the Bd. of Educ., Appeal No. 03-001). Moreover, given the record here, as part of its review of the relevant evaluative information, when the CSE reconvenes it should examine the student's behavior and performance in light of his hearing loss and determine whether the student compensates for the effects of his hearing loss by visual and tactile interaction with his environment that appears excessive to others, and/or expresses his anger and frustration through inappropriate behavior and substance abuse. The CSE should also consider how the student's hearing loss affects his ability to attend and whether his hearing loss is exacerbating the ADHD or the student's affect and behavior. The CSE should insure that behavioral consequences from the student's hearing loss are not mistakenly being taken as evidence of an emotional disorder.
The remedy of tuition reimbursement under the IDEA is available only to a student who meets the eligibility criteria of a student with a disability (Application of a Child Suspected of Having a Disability, Appeal No. 05-122). Since the impartial hearing officer's determination to find the student eligible for special education services was in error, I also find that the impartial hearing officer's award of tuition reimbursement to be erroneous.
The impartial hearing officer also ordered the CSE to reconvene and create an IEP that was consistent with his decision, "keeping in mind that the [Family Foundation] program is an 18-month program that should not be prematurely terminated" (IHO Decision, p. 13). This portion of the impartial hearing officer's decision must also be reversed because in the absence of a proper determination of eligibility it is premature to order the development of an IEP. Further, this portion of the impartial hearing officer's decision was outside his jurisdiction because the parties and the impartial hearing officer agreed at the commencement of the impartial hearing that respondent's impartial hearing request was limited to the 2005-06 school year (see Tr. pp. 6-7).
Because I have found that it is appropriate to remand the matter to the CSE for a determination of whether respondent's son is a student with a disability, the necessary inquiry here is at an end.3
In light of my determination herein I do not address petitioner's other concerns.
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that the impartial hearing officer's decision is hereby annulled to the extent that he awarded tuition reimbursement, determined that the student was eligible for special education as a student with an emotional disturbance, and directed the CSE to formulate an IEP; and
IT IS FURTHER ORDERED that, unless the parties otherwise agree, petitioner shall convene a CSE meeting within 30 days from the date of this decision, and consistent with the tenor of this decision determine whether respondent's son is eligible for special education services.
1 Congress recently amended the IDEA, effective July 1, 2005 (see Individuals with Disabilities Education Improvement Act of 2004, Pub. L. No. 108-446, 118 Stat. 2647  [codified as amended at 20 U.S.C. § 1400, et. seq.]). Since the relevant events at issue in this appeal occurred after the effective date of the 2004 amendments, the new provisions of the IDEA apply and citations contained in this decision are to IDEA 2004, unless otherwise specified
2 The term "free appropriate public education" means special education and related services that -
(A) have been provided at public expense, under public supervision and direction, and without charge;
(B) meet the standards of the State educational agency;
(C) include an appropriate preschool, elementary, or secondary school education in the State involved; and
(D) are provided in conformity with the individualized education program required under section 1414(d) of this title.
20 U.S.C. § 1401.
3 Because the record does not include sufficient information regarding the student's deficits, I am unable to determine what needs the student may have. Therefore, I cannot make a determination regarding the appropriateness of Family Foundation in addressing the student's needs related to his various psychiatric diagnoses, his behaviors, or how they may be affected by his hearing loss. I do note however that the private psychiatric evaluation report recommended ongoing individual counseling and the record does not reflect the level of professional counseling services that the student is receiving at Family Foundation. Moreover, there is limited information in the record as to how Family Foundation addressed the student's hearing loss. Petitioner testified that she informed Family Foundation that her son has "hearing problems" and that Family Foundation subsequently asked her for the student's FM unit (Tr. p. 182). Petitioner's additional testimony indicates that she sent the FM unit to Family Foundation approximately one week before the June 19, 2006 hearing date and that she did not know if he would be using it at Family Foundation (Tr. p. 179).