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The State Education Department
State Review Officer

94-19

Application of a CHILD WITH A DISABILITY, by her parents, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the City School District of the City of Yonkers

Appearances:

John M. Ryan, Esq., attorney for petitioners

Anderson, Banks, Curran and Donoghue, Esqs., attorneys for respondent, James P. Drohan, Esq., of counsel

DECISION

Petitioners appeal from the decision of an impartial hearing officer which denied petitioners' request for reimbursement of the tuition which they paid for their child to attend a local, parochial school during the 1993-94 school year, and which denied their request that respondent provide special education services to the child in the parochial school. The appeal must be sustained in part.

Petitioners' child, who is seven years old, has Down Syndrome. The child has a congenital heart defect, for which she has a pacemaker to maintain a regular heart beat, and has hypothyroidism, for which she takes medicine. She was initially classified as mentally retarded by respondent's committee on preschool special education in April, 1990. Upon her entry into Kindergarten in 1992, the child's classification as mentally retarded was continued by respondent's committee on special education (CSE). A school psychologist

who performed the child's triennial psychological evaluation in March, 1993 reported that the child ceased cooperating before the psychologist could administer enough of an IQ test to provide a valid score. Nevertheless, the psychologist estimated the child to have a verbal IQ of 42, a performance IQ of 45 and a full-scale IQ of 42. The child's adaptive behavior was reported by the psychologist to range from age equivalents of 1.7 years in socialization to 2.8 years in daily living skills. At the time she was re-evaluated, the child was six years old. Therefore, the child demonstrated that she had a concurrent deficit in her adaptive behavior (8 NYCRR 200.1 [mm][7]). The child's classification is not in dispute.

During the 1990-91 and 1991-92 school years, the child was enrolled on a twelve -month basis in the Alcott School, a private preschool in Scarsdale, New York. The child also received speech/language therapy and occupational therapy in the Alcott School. During the 1992-93 school year, she was enrolled in a special education kindergarten class with a 12:1+1 child to adult ratio in respondent's School No. 8, where she received speech/language therapy three times per week and occupational therapy once per week.

On March 11, 1993, the CSE conducted the child's annual review. It recommended that the child be enrolled in a self-contained special education class with a 12:1 child to adult ratio at an undetermined location, for the 1993-94 school year. The CSE also recommended that the child be provided with adaptive physical education, small group speech/language therapy three times per week, and individual occupational therapy twice per week. The individualized education program (IEP) which was prepared at the child's annual review is dated April 20, 1993. The record does not reveal the basis for the discrepancy between the date of the annual review and the IEP.

In a letter to the CSE chairperson, dated May 29, 1993, the child's mother expressed her dissatisfaction with the CSE's recommendation and asked for another CSE meeting. Thereafter, in a letter dated June 20, 1993, the child's mother informed the CSE chairperson that the child would be enrolled in the St. Eugene School, a local parochial school which the child's two sisters attended, for the 1993-94 school year. The child's mother asked that respondent provide the child with speech/language therapy, occupational therapy, and the services of a consultant teacher and an aide, on the premises of the St. Eugene School. Respondent's Director of Special Education testified at the hearing in this proceeding that she orally advised the child's mother that respondent would provide the child with speech/language therapy and occupational therapy, but that petitioners' request for an aide and a consultant teacher would have to be considered first by the CSE. The Director further testified that she had initially intended to have petitioners' request considered at a CSE meeting during the Summer of 1993, but that the CSE did not meet during the Summer because of financial constraints in the school district. In a letter to petitioners, dated July 2, 1993, the Director advised petitioners that the child would be provided speech/language therapy and occupational therapy in respondent's School No. 8, and that the CSE would not consider their request for an aide and a consultant teacher until September, 1993.

On September 29, 1993, the CSE met with petitioners, who had placed the child in kindergarten in the St. Eugene School. The CSE considered a classroom observation report by the School No. 8 principal, who reported that the child listened to and followed the teacher's directions, as well as a written report by the child's special education teacher during the 1992-93 school year. The teacher reported that the child was at the reading readiness level, but did not remember the sounds of letters or know the names of letters, and that the child was at the pre-kindergarten level in mathematics. The teacher further reported that the child's oral expression was limited, and that she needed to have the teacher's questions and directions repeated in order to comprehend. The principal of the St. Eugene School, who also attended the CSE meeting, reported that the child exhibited appropriate skills for a child entering kindergarten, including the ability to identify most letters of the alphabet and numbers from 1 to 10. The St. Eugene principal described the child's graphomotor skills as limited, and her visual memory functioning as below grade level. She reported that the child could follow two-step oral directions, but had to be encouraged to express herself in complete sentences. The St. Eugene principal also reported that the child's highly developed social skills and personality were her greatest strength, and that she appeared to have adjusted well to school. The principal asserted that the child would benefit greatly from the services of an aide.

At the hearing in this proceeding, respondent's school psychologist testified that the CSE concluded that the child's cognitive, linguistic and social skills were appropriate for the child to be included in a regular education kindergarten class for the 1993-94 school year, and that the child would benefit from the socialization and patterning of behavior which would be available in such class. The school psychologist further testified that the CSE concluded that the child required the part-time services of a consultant teacher and the full-time services of an aide, in addition to speech/language therapy and occupational therapy. Respondent's Director of Special Education, who chaired the CSE meeting, testified that at the conclusion of the September 29, 1993 CSE meeting, she advised petitioners that respondent would provide the services of a consultant teacher and an aide in the St. Eugene School, if it were legally permitted to do so. The principal of the St. Eugene School and the child's mother each testified that they did not recall the Director of Special education having indicated that respondent might not be legally able to provide the requested services in the St. Eugene School.

After the CSE meeting, the Director of Special Education contacted a representative of the State Education Department, who reportedly advised her that respondent could not lawfully provide the requested services in the St. Eugene School. The child's IEP, which was completed after the September 29, 1993 CSE meeting and which was dated October 13, 1993, provided that the child would be placed in an inclusion program in a regular education kindergarten class, in an unidentified public school. Although the parties in this appeal have repeatedly used the term "inclusion program," the record does not reveal what their understanding of that term was. However, the term is generally understood to mean the placement of a child with a disability with the child's chronological peers in a regular education class, in which the child is expected to achieve at a level commensurate with the child's ability and IEP requirements, with the assistance of appropriate special education and related services (Application of a Child with a Disability, Appeal No. 94-17). The child's IEP also provided that the child would receive the services of a full-time, individual aide, and 30 minutes per week of consultant teacher services, but did not specify whether the child was to receive direct or indirect consultant teacher services (see 8 NYCRR 200.1 [1]). The IEP further provided that the child would receive individual speech/language therapy three times per week and individual occupational therapy twice per week.

In a letter to the Director of Special Education dated October 14, 1993, petitioners asked for an explanation of the CSE's reversal of its position on the location at which the child's special education services would be provided. The Director of Special Education responded to petitioners in a letter dated November 4, 1993, in which she indicated that respondent was not legally obligated to provide any such services in the private school. On November 17, 1993, respondent approved the child's IEP.

An impartial hearing was held at petitioners' request. The hearing commenced on March 25, 1994, and concluded on April 21, 1994. In a decision dated May 20, 1994, the hearing officer held that petitioners were not entitled to be reimbursed for the tuition which they had paid for the child to attend the St. Eugene School during the 1993-94 school year, based on his finding that respondent had offered the child an appropriate educational program in the IEP prepared after the September 29, 1993 CSE meeting. The hearing officer further held that respondent could not provide the services of a consultant teacher or an aide in the St. Eugene School without violating the Establishment Clause of the First Amendment to the U.S. Constitution.

The child remained in the St. Eugene School for the entire 1993-94 school year. She received one hour per week of occupational therapy in respondent's School No. 8. Petitioners do not contest the appropriateness or location of the child's occupational therapy. At the hearing, the child's mother testified that the child was receiving only 30 minutes of group speech/language therapy per week from respondent, notwithstanding the fact that the child's IEP indicated that the child would receive 30 minutes of individual speech/language therapy three times per week. The hearing officer directed the parties to hold an off-the-record discussion to arrange for the child to receive appropriate speech/language services. Petitioners have not raised the adequacy of the child's speech/language therapy as an issue in this appeal.

Petitioners assert that the hearing officer erred in finding that respondent had offered the child an appropriate program for the 1993-94 school year. They contend that the hearing officer should have considered the appropriateness of the program which the CSE recommended in the child's IEP dated April 20, 1993, rather than the appropriateness of the program recommended by the CSE in the child's IEP dated October 13, 1993. In the first IEP, the CSE recommended that the child be educated in a self-contained special education class, while in the second IEP, the CSE recommended an inclusion program for the child.

Respondent contends that the appropriateness of the first IEP is a moot issue, because petitioners did not challenge the IEP, and because that IEP was superseded by the second IEP. I disagree. Petitioners seek tuition reimbursement for the 1993-94 school year. At the time when they placed the child in the St. Eugene School, the first IEP, i.e., the IEP dated April 20, 1993, was the only IEP for the 1993-94 school year. Petitioners had requested another CSE meeting in May, 1993, because they were dissatisfied with the first IEP. However, the CSE did not reconvene until September 29, 1993, almost one month after the start of school in the 1993-94 school year, and four months after petitioners had requested a meeting with the CSE. In addition, I find that the second IEP was a nullity, because the CSE was not lawfully composed. The IEP listed the participants in the September 29, 1993 CSE meeting, which did not include the child's teacher, as that term is defined in Federal regulation. Section 4402 (1)(b)(1) of the Education Law requires that a CSE include the child's teacher, as defined by applicable Federal regulation. In this instance, the child was not attending respondent's schools when the CSE meeting was held. Respondent could have designated any certified special education teacher to attend the CSE meeting as the child's teacher (34 CFR 300.344 [a][2] Note 1 [c]). However, it did not do so.

Respondent bears the burden of demonstrating the appropriateness of the program recommended by its CSE (Matter of Handicapped Child, 22 Ed. Dept. Rep. 487; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Child with a Disability, Appeal No. 93-9). To meet its burden, respondent must show that the recommended program is reasonably calculated to allow the child to receive educational benefits (Bd. of Ed. Hendrick Hudson CSD. v. Rowley, 458 U.S. 176 [1982]), and that the recommended program is the least restrictive environment for the child (34 CFR 300.550 [b]; 8 NYCRR 200.6 [a][1]). At the hearing in this proceeding, the CSE chairperson for the annual review which was held on March 11, 1993, and which resulted in the IEP dated April 20, 1993, testified that the CSE had not considered an inclusion program for the child. Although the CSE had the benefit of some additional information about the child when it met on September 29, 1993, and recommended an inclusion program for the child, it is apparent from the record that the child's abilities and needs had not changed significantly in the interim between the two meetings. The inclusion program which the CSE recommended at the latter meeting was clearly far less restrictive than the program recommended at the annual review meeting of March 11, 1993. Respondent offered no evidence at the hearing in support of the restrictive special class placement. Upon the record before me, I find that respondent did not meet its burden of proof with respect to the appropriateness of the program which the CSE recommended for the child in her IEP dated April 20, 1993.

Although I have found that the child's IEP dated October 13, 1993 was a nullity because the CSE was not validly composed, I would, in any event, be constrained to find that the IEP was defective. An IEP must accurately reflect the results of evaluations to identify the child's needs, provide for the use of appropriate special education services and establishes annual goals and short-term objectives which are related to the child's educational deficits (Application of a Child with a Disability, Appeal No. 93-12). The October 13, 1993 IEP indicated that an educational evaluation of the child was conducted on June 28, 1993, but did not include any information from such evaluation. The IEP described the child's reading and mathematics skills as at the pre-kindergarten level, notwithstanding the fact that the April 20, 1993 IEP described such skills as being at the kindergarten readiness level. The first annual goal in the child's IEP of October 13, 1993 provided that the child would " ... participate in and complete requirements of regular education courses". There were no short-term objectives from such goal, which would appear to have been based upon the concept of mainstreaming, rather than inclusion. Although the IEP reported that the child exhibited immature social behavior, it did not include any annual goal to improve her social behavior or facilitate her success in a regular education setting. In addition, I must also find that respondent has not demonstrated that the CSE would have provided the appropriate special education for the child, had she been re-enrolled in respondent's schools for the 1993-94 school year. There is no documentary evidence or testimony in the record to support provision of only 30 minutes per week of consultant teacher services to this child in her inclusion setting, given her previous level of special education services.

For the foregoing reasons, I find that the hearing officer's conclusion that respondent had offered an appropriate program for the 1993-94 school year must be annulled. A board of education may be required to pay for educational services obtained for a child by the child's parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]; Hiller v. Brunswick CSD, 687 F. Supp. 735 [N.D. NY, 1988]). With respect to the first of the three Burlington criteria, i.e., the appropriateness of the program offered by respondent, I have found that respondent did not meet its burden of proof.

Petitioners bear the burden of proof with respect to the second Burlington criterion, i.e., the appropriateness of the services which they obtained for their child. In order to meet their burden, petitioners must show that those services were "proper under the Act [the Individuals with Disabilities Education Act]" (School Committee of the Town of Burlington, supra, 370). In other words, that the services addressed the child's special educational needs. Although the St. Eugene School attempted to assist the child with the extensive use of aides assigned for other purposes to the child's class, the principal of the St. Eugene School acknowledged in her testimony that the child required the services of a consultant teacher and had not received such services. Upon the record before me, I am unable to find that the child's special education needs were addressed by her placement in the St. Eugene School. Therefore, I find that petitioners have not met their burden of proof with respect to the second Burlington criterion. There is no need to reach the issue of the third criterion. Petitioners' request for an order directing respondent to reimburse them for the tuition which they paid to the St. Eugene School must be denied.

Petitioners also seek an order requiring respondent to provide consultant teacher services and an aide in the St. Eugene School. Although the 1993-94 school year has concluded, and the child's placement and program for the 1994-95 school year is not part of this appeal, the issue which petitioners raise is capable of repetition and should not evade review simply because the school year has concluded (De Vries v. Spillane, 853 F. 2d 264 [4th Cir., 1988]; Daniel R. v. El Paso Indep. School Dist., 874 F. 2d 1036 [5th Cir., 1989]).

The central issue in this appeal involves the nature and extent of the services which a board of education must provide to a child who has been unilaterally enrolled by the child's parents in a private school. Federal and State law require boards of education to make special education and related services available to children unilaterally placed in private schools (20 USC 1413 [a][4][A]; Section 3602-c of the Education Law). Boards of education may provide appropriate special education and related services to children unilaterally enrolled by their parents in private schools, by offering such education and services in the public schools, in private schools or at neutral sites (Bd. of Ed. Monroe-Woodbury Central School District v. Weider et al., 72 NY 2d 174). In the Weider decision, the Court of Appeals stated that, under State law, school officials may fashion an appropriate program for each child within statutory guidelines and constitutional constraints.

While conceding that boards of education have discretion in determining where special education and related services may be offered to children who attend private schools, petitioners nevertheless assert that their child must receive the services of a consultant teacher and of an aide in the private school which the child attends. They refer to the testimony of the principal of the St. Eugene School, as well as that of respondent's witnesses, that such services cannot be meaningfully provided at some other location. Both services are necessarily directly linked to the instruction which the child receives in the private school. The St. Eugene School principal testified that a consultant teacher was needed to provide supplemental instructional materials to enhance St. Eugene's curriculum, to enhance the child's instruction, and to assist the St. Eugene's teachers in modifying the child's curriculum to meet her needs. The principal further testified that the aide would provide additional instruction to the child, review material with her, and assist the child to function in the St. Eugene School. The principal also testified that religion was more than a course in the St. Eugene School curriculum, and was pervasive of the school's atmosphere.

Petitioners rely upon the decision of the United States Supreme Court in Zobrest et al. v. Catalina Foothills School district, U.S. , 113 S. Ct. 2462 (1993) to support their assertion that respondent is not constitutionally precluded from providing the services of a consultant teacher and an aide who also instructs in a sectarian school like the St. Eugene School. In Zobrest, the Supreme Court held that a school district's use of Federal funds under the Individuals with Disabilities Education Act to provide a sign-language interpreter to a child with a disability in a sectarian school did not violate the Establishment Clause of the First Amendment to the U.S. Constitution. Distinguishing previous cases holding that school district employees could not teach in sectarian schools (see School Dist. of Grand Rapids v. Ball, 473 U.S. 373 [1985]), the Court in Zobrest found that the task of a sign-language interpreter was "quite different" from that of a teacher (Zobrest, at 2469).

In Application of a Child with a Disability, Appeal No. 93-3, the State Review Officer held that a board of education could not provide the services of a consultant teacher and instructional aide in a sectarian school, without violating the Establishment Clause. Review of that decision was obtained in the U.S. District Court for the Northern District of New York in Matter of Russman v. Bd. of Ed. Enlarged City Sch. Dist. City of Watervliet, 93-CV-905, June 22, 1994, n.o.r. Magistrate Judge Smith held that the case was clearly distinguishable from Zobrest, because the consultant teacher and aide would be employed to modify the child's curriculum in the sectarian school. Upon the record before me, I find that there is no basis for distinguishing this case from the Watervliet case. Consequently, I find that respondent may not provide the child with the services of a consultant teacher and instructional aide in the St. Eugene School, consistent with the provisions of the Establishment Clause of the First Amendment of the U.S. Constitution.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED hat the decision of the hearing officer, to the extent that it found that respondent had offered an appropriate educational program to the child for the 1993-94 school year, is hereby annulled.

Dated: Albany, New York                                                                  ________________________________
             August 24, 1994                                                                                       FRANK MUÑOZ