The State Education Department
State Review Officer

No. 95-79

 

 

 

Application of the BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK for review of a determination of a hearing officer relating to the provision of educational services to a child with a disability

 

Appearances:
Hon. Paul A. Crotty, Corporation Counsel, attorney for petitioner, Lawrence E. Becker, Esq., and Phoebe Redmond, Esq. of counsel

Neal Howard Rosenberg, Esq., attorney for respondent

 

DECISION

        Petitioner, the Board of Education of the City School District of the City of New York, appeals from the decision of an impartial hearing officer which directed petitioner to reimburse respondent for her expenditures for her daughter's tuition at the Stephen Gaynor School during the 1993-94, 1994-95, and 1995-96 school years. The Board of Education seeks an order annulling the hearing officer's decision with respect to all three school years. The appeal must be sustained.

        Respondent's daughter, who is twelve years old, has attended the Stephen Gaynor School since September, 1991. Prior to attending the Stephen Gaynor School, the child was enrolled for kindergarten and first grade in the Lenox School. She reportedly received remedial assistance in reading and mathematics, while attending the Lenox School. The girl was also privately tutored. When she began to be tutored mid-way through kindergarten, she reportedly did not recognize all lower case letters, and had weak phonic skills. She also had difficulty with handwriting. The tutor worked with the child to address her deficits in visual motor and spatial skills. By the end of kindergarten, the child was reportedly able to read and write words. The tutor reported that she used a multisensory approach to teach the child phonic skills.

        At the hearing in this proceeding, respondent testified that the staff of the Lenox School advised her that the child was becoming very quiet, and was not participating in school. Eventually, the staff advised respondent that the Lenox School was no longer appropriate for the child. Respondent decided to enroll the child in the Stephen Gaynor School, which the child's older sister had attended.

        In May, 1991, respondent wrote a letter to the chairperson of the committee on special education (CSE) of Community School District 2, in which she requested that the child be evaluated for the purpose of obtaining bus transportation to the Stephen Gaynor School. In a psychological evaluation which was performed in June, 1991, the child achieved a verbal IQ score of 95, a performance IQ score of 108, and a full scale IQ score of 101. Petitioner's school psychologist reported that the child evidenced a learning difficulty in arithmetic because she was unable to do "figures in her head" in an age-appropriate manner. The child's visual perceptiveness was described as being in the average range, but her ability to copy abstract forms was described as being in the low-average range.

        An educational evaluation was also completed in June, 1991, when the child was seven years and four months old. She achieved an age equivalent score of eight years and four months on a test of her oral language skills. Her other language skills were reported to be at or above grade level. The child obtained grade equivalent scores of 3.5 in word recognition, 2.4 in reading comprehension, 1.6 in mathematical computation, and 1.6 in mathematical applications. Her written language skills were reported to be at, or above, grade level. The evaluator reported that the child displayed an adequate attention span.

        In July, 1991, a speech/language evaluation was performed. The child achieved a below average score on a test of linguistic concepts, which the evaluator attributed to the child's weak auditory processing skills. The evaluator reported that the child's ability to process oral directions was below normal, and that the child had a deficit in her short-term auditory memory skills. The evaluator found that the child's expressive language skills were adequate, but that she had moderate to severe receptive language difficulties. The child's evaluator recommended that the child receive speech/language therapy.

        On July 24, 1991, the CSE recommended that the child be classified as speech impaired, and that she receive speech/language therapy three times per week in a group of no more than three children. The child's individualized education program (IEP) which the CSE prepared at its July 24 meeting indicated that the child was to receive transportation "if required." At the hearing which was held in this proceeding, petitioner's representative conceded that the CSE had been invalidly composed because it did not include a parent member, as required by Section 4402 (1)(b)(1) of the Education Law. In a final notice of recommendation which was dated July 30, 1991, petitioner offered respondent a placement for her child in a regular education second grade class in petitioner's P. 116, with speech/language as recommended by the CSE. On August 9, 1991, respondent returned a copy of the final notice to the CSE with an attached letter which indicated that she was enrolling the child in the Stephen Gaynor School. She requested that her child be transported to the private school, and that the child be provided with speech/language therapy. Respondent did not challenge the CSE's recommendation.

        At the hearing, respondent's attorney asserted, and petitioner's representative did not deny, that petitioner had provided transportation to the child, but did not provide speech/language therapy to her. The child reportedly received language therapy provided by the Stephen Gaynor School. Petitioner's representative at the hearing conceded that the CSE had not conducted annual reviews of the child for the 1992-93, 1993-94 or 1994-95 school years (cf. 34 CFR 300.343 [d]; 8 NYCRR 200.4 [e]). The CSE also failed to perform a triennial evaluation of the child in June, 1994, as required by Federal and State regulation. Petitioner's representative testified that the case "actually came back to us" in May, 1995, when the CSE conducted a "child find" activity to identify students who had been classified as children with disabilities, but were not receiving any service from petitioner except transportation to an unapproved private school. In May 1995, the CSE asked respondent to make the child available for a re-evaluation, which began in June, 1995. However, the re-evaluation had still not been completed when the hearing in this proceeding was held on September 7, 1995.

        Respondent had the child privately evaluated by a psychologist, in December 1994, when the child was in the fifth grade. The psychologist reported that the child had been cooperative, but slow with her oral responses during the evaluation. She noted that the child had evidenced some difficulty in processing auditory information. The psychologist reported that the child had achieved a verbal IQ score of 99, and a performance IQ score of 72. She opined that there was no purpose in reporting the child's full scale IQ score because of the disparity between the other two IQ scores. The psychologist reported that the child exhibited relative strength in verbal comprehension, notwithstanding reports by the child's teachers in the Stephen Gaynor School that there were deficits in the child's verbal comprehension. The psychologist described the child as being somewhat concrete in her thinking, and having slightly below age expectancy short-term auditory attention and memory for oral sequences. The psychologist reported that the child's most significant deficits were in processing spatial information and nonverbal reasoning. She further reported that the child had perceptual motor deficits, and that her language skills were unevenly developed. The psychologist indicated that the child had age appropriate skills for learning and understanding verbal material, but had great difficulty processing visual motor information and forming nonverbal concepts.

        The psychologist also assessed the child's academic skills. At the time of the evaluation, the child was in the middle of the fifth grade. She achieved grade equivalent scores of 6.8 in reading decoding, 4.5 in reading comprehension, 4.5 in mathematical computation, 3.5 in mathematical reasoning, and 6.9 in spelling. On a test of her oral reading skills, the child achieved a grade equivalent score of 3.7 in reading comprehension, while her decoding skills were reported to be above grade level. On the Woodcock Reading Mastery Test, the child achieved a grade equivalent score of 3.5 in reading comprehension.

        The psychologist described the child as having well developed social understanding, but being dependent upon adults to solve problems. She recommended that the child receive therapy, i.e., counseling, to deal with her difficulties in separation and her ambivalent relationship with her family. She also recommended that the child be involved in large and small motor and perceptual motor activities to improve her sensory motor integration, visual perception and grapho-motor control.

        On June 13, 1995, respondent asked for an impartial hearing for the purpose of obtaining tuition reimbursement from respondent for the cost of the child's tuition at the Stephen Gaynor School during the 1993-94 and 1994-95 school years. Thereafter, she also asked for reimbursement for the 1995-96 school year. The hearing began on July 27, 1995, but was immediately adjourned with the consent of both parties because a representative of the CSE of Community School District 3 was not present. Although respondent and her daughter live in Community School District 2, the CSE of Community School District 3 had reportedly assumed responsibility for the child because the Stephen Gaynor School is located in the latter district. The hearing resumed on September 7, 1995. At the hearing, respondent acknowledged that she had not sought to obtain review of the CSE's recommendation for the 1991-92 school year, nor had she challenged the CSE's failure to make any recommendation for the subsequent school years. She conceded that she had received a copy of the booklet Special Education: A Guide for Parents, in which parental due process rights are explained. The final notice of the CSE's recommendation which respondent received included a brief statement advising respondent of her right to an impartial hearing. She testified that she was led by petitioner's staff to believe that there was no other service beside transportation which was available from the Board of Education.

        In her decision which was rendered on October 11, 1995, the hearing officer noted that 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]). The fact that the facility selected by the parents to provide special education services to the child is not approved as a school for children with disabilities by the State Education Department (as in the case here) is not dispositive of the parents' claim for tuition reimbursement (Florence County School District Four et al. v. Carter by Carter, ___U.S. ___ , 114 S. Ct. 361 [1993]).

        The hearing officer found that petitioner had failed to meet its burden of proof with respect to the first Burlington criterion, i.e., whether the educational services offered by the Board of Education were appropriate, because petitioner had not in fact offered any educational program to the child for the 1993-94, 1994-95, and 1995-96 school years. With regard to the second Burlington criterion, i.e., whether the educational services selected by respondent were appropriate for her daughter, the hearing officer found that the child was, in fact, learning disabled, rather than speech impaired, (cf. 8 NYCRR 200.1 [mm][6]). She also found that the Stephen Gaynor School offered appropriate educational services to the child. Specifically she found that the child required the individualized instruction in small classes which the Stephen Gaynor School had reportedly provided during the first two of the three years in question, and would provide during the 1995-96 school year.

        The hearing officer also found that equitable considerations supported respondent's claim for tuition reimbursement (the third Burlington criterion). In her analysis, the hearing officer referred to the four questions which I had posed in my decision in another proceeding involving the Board of Education, but not respondent:

1. To what extent had the CSE provided the parent with notice of her due process rights?

2. When did the parent become aware, or should have become aware, of her right to seek to obtain tuition reimbursement in a due process proceeding?

3. When did the CSE become aware, or should have become aware, of the parent's dissatisfaction with the CSE's failure to make recommendations for the school years in question?

4. Did the parent cooperate with the CSE during the time in question (Application of a Child with a Disability, Appeal No. 95-43).

        The hearing officer found that the parent had been notified of her due process rights when the child was initially classified as a child with a disability in 1991. She noted that prior to November 9, 1993, when the Supreme Court rendered its decision in the Carter case, parents in New York could not obtain reimbursement for tuition in an unapproved private school (Tucker v. Bay Shore UFSD, 873 F. 2d 563 [2d Cir., 1989]; Lombardi v. Nyquist, 63 AD 2d 1058 [3d Dept., 1978]). She noted that the parent had testified that she was unaware of the possibility of seeking tuition reimbursement, until approximately six months before the hearing was held. The hearing officer further found that the CSE had not become aware of respondent's dissatisfaction with the CSE's inaction until the parent asked for a hearing in June, 1995. Finally, she found that respondent had cooperated with the CSE at all times. The hearing officer directed the Board of Education to reimburse respondent for her tuition expenditures during all three school years, upon respondent's presentation of proof of her payments to the private school. She also directed the CSE to complete its evaluation of the child, and to prepare her IEP for the 1995-96 school year, within 30 days after the date of her decision.

        Respondent raises a procedural objection to the petition. She asserts that the Board of Education did not attempt to personally serve the petition upon her until the last possible day for timely service. The Regulations of the Commissioner of Education provide that a parent shall serve a copy of his or her petition upon a board of education within 40 days after receipt of a hearing officer's decision, which is ten days after the parent has served a notice of intention to seek review (8 NYCRR 279.2[b]). While the Regulations of the Commissioner do not explicitly prescribe a time limit for a board of education to initiate a proceeding, I find that a 30 day period after receipt of a hearing officer's decision is consistent with the Commissioner's regulation because the petition is the first and only jurisdictional document which a board of education is required to serve and file. The record reveals that the hearing officer rendered her decision on October 11, 1995. It does not reveal when the Board of Education received its copy of the hearing officer's decision. A law clerk in petitioner's Office of Legal Services has annexed her affidavit to the amended petition. In the affidavit, the law clerk asserts that she attempted to personally serve a copy of the petition upon the child's parents at their residence, at 6:30 p.m. on November 13, 1995. She further asserts that the door was answered by respondent's housekeeper, who informed her that neither respondent nor her husband were home. The law clerk asserts that she left a copy of the petition with the housekeeper, and that she sent a copy of the petition by certified mail to the child's parents, on November 14, 1995. She also asserts that she mailed a courtesy copy of the petition to respondent's attorney. Thereafter, the law clerk was reportedly advised by the State Education Department's Office of Counsel that the petition had not been validly served (see 8 NYCRR 275.8 [a]). However, the law clerk was subsequently advised by the Office of State Review that she could personally serve a copy of the petition upon respondent's attorney, if the latter would accept service on behalf of the child's parents. Respondent's attorney reportedly agreed to do so, and was personally served with a copy of the amended petition on November 28, 1995. Respondent has not refuted the facts alleged by petitioner in its amended petition with the supporting affidavit by the law clerk. In view of the fact that petitioner did put the child's parents on notice of its intention to appeal from the hearing officer's decision by its timely, but imperfect, attempt to serve the petition on November 13, 1995, and the fact that respondent has not demonstrated that she was prejudiced by petitioner's brief delay in perfecting the service of its amended appeal, I will excuse petitioner's delay (Application of a Child with a Disability, Appeal No. 93-33).

        In its petition, the Board of Education concedes that it failed to make a timely offer of a free appropriate public education (see 20 USC 1401 [a][18]) to the child for the 1993-94, 1994-95, and 1995-96 school years. Petitioner challenges the hearing officer's findings with respect to the second and third Burlington criteria, i.e., the appropriateness of the services, provided to the child in the Stephen Gaynor School, and the equitable considerations supporting respondent's claim for tuition reimbursement.

        Respondent bears the burden of proof concerning the appropriateness of the Stephen Gaynor School's educational program for her daughter (Application of a Child with a Disability, Appeal No 94-29; Application of the Bd. of Ed. of the Monroe-Woodbury CSD, Appeal No. 94-34). To meet her burden, respondent must show that the educational services provided by the Stephen Gaynor School addressed the child's identified special education needs. She must also show that the child's placement in the Stephen Gaynor School is consistent with the Individuals with Disabilities Education Act's requirement that children with disabilities are educated in the least restrictive environment (20 USC 1412 [5][B]; P.J. v. State of Connecticut, 788 F. Supp. 673 [D. Conn., 1972]; Application of a Child with a Handicapping Condition, Appeal No. 92-7, decision sustained sub nom, Lord v. Bd. Fairport Central School District et al., 92-CV-6286 [W.D. N.Y., 1994]).

        At the hearing, respondent's attorney suggested that the child might be learning disabled in the area of reading. However, I find with respect to the 1993-94 school year that the child's previously unchallenged classification as speech impaired must be applied. The child was evaluated in June, 1991. Petitioner was not required to re-evaluate the child until June, 1994 (34 CFR 300.534 [b]; 8 NYCRR 200.4 [e][4]). The child's special education needs as identified in the CSE's 1991 evaluations and reflected on her IEP for the 1991-92 school year were in the areas of auditory processing and short-term auditory memory. Although there was a discrepancy between her word recognition skills and her reading comprehension skills, her reading skills were nevertheless at, or above, grade level. There was a slight lag in her mathematical skills, but there was no showing that she required special education for mathematics. The child's writing skills were also reported to be at, or above, grade level.

        Respondent's witness at the hearing was a teacher at the Stephen Gaynor School who had taught the child reading during the 1994-95 school year. Although the teacher briefly testified about what the child's teacher for the 1993-94 school year had reported about the child's needs, she could not testify about how the private school had addressed the child's needs during the 1993-94 school year. Respondent introduced into evidence a mid-year and an end-of-year progress report for the child from the Stephen Gaynor School for the 1993-94 school year, during which the child was in the fourth grade. The reports indicated that her instructional level for mechanical reading skills was at a 4.5 grade equivalent in December, 1993 and a 5.0 grade equivalent in May, 1994. The instructional level for her reading comprehension skills was reported to be at a 4.5 grade equivalent in both December, 1993, and May, 1994. Her mathematical skills were reported to be at a 3.5 grade equivalent in December, 1993. No grade equivalent was given for her mathematical skills in May, 1994, and few details were provided about her needs in this area, or how they were addressed. The end of year report indicated that the child required remediation in reading, but not in mathematics. The report also described the child as highly organized in her work habits.

        Upon the record before me, I find that respondent did not meet her burden of proof with respect to the appropriateness of the services which she obtained for the child at the Stephen Gaynor School during the 1993-94 school year because she failed to demonstrate how the private school addressed the child's special education needs, or that those needs could not have been met in a less restrictive placement than a full-time special education program. Although my finding with regard to the second Burlington criterion is dispositive of respondent's claim for tuition reimbursement for the 1993-94 school year, I further find that respondent's claim is not supported by equitable considerations. She was clearly on notice of her due process rights when she received the final notice of the CSE's recommendation in August, 1991. The record reveals that she intended to enroll her child in the private school because of her belief that it would provide a more appropriate education for the child. While respondent may not have discovered that she could seek tuition reimbursement until 1995, I find that the primary purpose of the due process procedures is to provide children and their parents with a mechanism to ensure that children receive a free appropriate public education, and that parents must promptly resort to those procedures (Application of a Child with a Disability, Appeal No. 95-77; Application of a Child with a Disability, Appeal No. 95-86). In this instance, I find that respondent delayed too long in invoking the due process procedures for the 1993-94 school year.

        With regard to the 1994-95 and 1995-96 school years, the CSE failed to adequately identify the child's needs because its 1991 evaluations were no longer valid. The only evaluative information for those school years which is in the record is set forth in the private psychological evaluation which was started in December, 1994, and completed in January, 1995. That evaluation indicated that the child's verbal ability was age appropriate, despite her uneven pattern of learning. Her decoding and spelling skills were reported to be above grade level, while her reading comprehension was one year below grade level. The child's mathematics skills, which had been slightly below grade level when she was evaluated in 1991, ranged from at grade level in computation to approximately two years below grade level in mathematical reasoning. In contrast to the results of the 1991 school psychologist's finding that the child could not solve mathematical problems in her head at an age appropriate level, the private psychologist reported that the child could perform that task at an age adequate level. The child's relatively poor performance in mathematical reasoning appeared to be attributable to her language deficits. The child's progress report from the private school indicated that the instructional level for the child's mechanical reading skills was at a 4.5 grade equivalent in December, 1994, and at a 4.5 to 5.5 grade equivalent in May, 1995. Her grade equivalents for the instructional level of her reading comprehension skills were 4.5 in December, 1994, and 4.5 to 5.0 in May, 1995. The child's instructional level for mathematics was reported to be at a 4.3 grade equivalent throughout the 1994-95 school year.

        At the hearing in this proceeding, the child's reading teacher for the 1994-95 school year testified that she worked with the child to develop the child's reading comprehension skills, her ability to summarize, and her ability to make inferences. The teacher testified that the child continued to have deficits in comprehension, and that abstract learning was difficult for the child. She opined that the child needed to have instruction provided to her in a small group setting, and testified that the girl had been instructed in a group of three for mathematics, a group of five for reading, and a group of ten for her other subjects. The reading teacher did not describe the instruction which the child had received in her other subjects. I have also considered the private school's progress report for the child for the 1994-95 school year. The report indicated that the child had some difficulty with reading comprehension, creative writing, and mathematical word problems, all of which were language related. The report provided at least some indication of the techniques which the child's teachers used to address her difficulty in those areas. I must note that techniques, such as repeating instructions, and presenting the curriculum in small units, are not exclusively special education techniques. Upon the record which is before me, I find that respondent has not demonstrated that her child's special education needs could only have been addressed in the full-time special education program which the Stephen Gaynor School provided to the child during the 1994-95 school year. Accordingly, I find that respondent did not meet her burden of proof with respect to the second Burlington criterion.

        With regard to the 1995-96 school year, I again rely upon the private psychologist's evaluation report, as well as the testimony of the Stephen Gaynor School teacher. The teacher testified that she would teach English, writing, geography and current events to the child in a group of ten children, during the 1995-96 school year. There is no other information about the child's instructional program for the 1995-96 school year. Upon the record, I find that respondent has not demonstrated how the private school would meet the child's special education needs, or that the child's needs were so severe that she needed to be educated in such a restrictive setting, during the 1995-96 school year.

        THE APPEAL IS SUSTAINED.

        IT IS ORDERED that the decision of the hearing officer is annulled.

 

 

Dated: Albany, New York __________________________
February 27, 1996 ROBERT G. BENTLEY