The State Education Department
State Review Officer

No. 96-8



Application of a CHILD WITH A DISABILITY, by his parent, 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 New York


Neal H. Rosenberg, Esq., attorney for petitioner

Hon. Paul A. Crotty, Corporation Counsel, attorney for respondent,
Elisabeth A. Palladino, Esq., of counsel



        Petitioner appeals from the decision of an impartial hearing officer which held that the recommendation by respondent's committee on special education (CSE) for the educational program of petitioner's son for the 1995-96 school year was procedurally flawed and substantively inadequate, but which denied most of petitioner's claim for reimbursement of the tuition which she has paid for the child to attend a private school. Petitioner's claim for tuition reimbursement was denied on the grounds that only a portion of the private school's educational program reportedly addressed the child's special education needs, and that equitable considerations did not support petitioner's claim. The appeal must be dismissed.

        Petitioner's son is nine years old. He is in the third grade of the Columbia Grammar and Preparatory School (Columbia), which he has attended, at his parents' expense, since the first grade. Columbia is a private school which provides regular education instruction to approximately 200 children in grades kindergarten through five, as well to other children in the upper grades. The school has a Learning Resource Center (LRC) program to provide remedial assistance to Columbia students. Petitioner's son has been enrolled in the LRC program, for which a separate tuition is charged, since he entered Columbia. Prior to enrolling in Columbia in September, 1993, the child attended a private nursery school. In a social history of the child, petitioner indicated that she noticed that the child felt overwhelmed, at the age of three, in nursery school. The child was reportedly tested for a suspected learning disability, when he was four years old. He was reportedly diagnosed as having an attention deficit disorder (ADD), for which he began taking medication. The child reportedly received speech/language therapy, occupational therapy, and counseling, prior to being referred to the CSE.

        At the hearing in this proceeding, petitioner testified that in the middle of the 1994-95 school year she decided to seek a public placement for her child because she and her husband could no longer afford to pay for the combined Columbia and LRC tuition charges. Petitioner referred the child to the CSE for evaluation and placement, by letter dated March 10, 1995.

        In a psychological evaluation which was performed on April 20, 1995, the child achieved a verbal IQ score of 128, a performance IQ score of 108, and a full scale IQ score of 120. He displayed relative weakness on tasks requiring auditory concentration, scanning and visually discriminating between shapes, and graphomotor (handwriting) speed. The psychologist noted that the child had attentional deficits, and an inability to screen out extraneous details and inner noise. Although the child was distractible during the evaluation, the psychologist reported that the child was easily refocused. The psychologist observed some spontaneous verbal and physical mannerisms in the child, and recommended that he receive a neurological evaluation to determine if he had Tourette's Syndrome. She reported that the child's performance on a test of his visual motor integration skills was below age expectancy, and opined that the child's fine motor skills appeared not to be fully developed. The psychologist reported that the child seemed to relate well to authority figures, but could have difficulty relating to his peers because of his high level of intellectual functioning and distractibility. She reported that the child appeared to feel lonely and socially incompetent with a resulting loss of self-esteem. The psychologist recommended that the child receive counseling to increase his self-esteem.

        On May 13, 1995, an educational evaluation was performed. The evaluator reported that although the child was at times distractible, he remained well focused, and attempted all tasks with excellent effort during the evaluation. The child was described as articulate, and as having adequate receptive language skills. He achieved grade equivalent scores of 4.7 in letter-word identification, and 6.2 in passage comprehension. At the time of his evaluation, the child was completing the second grade. He achieved grade equivalent scores of 3.3 in applied mathematical problems, and 3.5 in mathematical calculations. The evaluator reported that the child could multiply and divide by some one digit numbers, but his performance was inconsistent. He also displayed difficulty in applying the concepts of two-step problems and money, and reversed the number five when writing. In a test of his writing skills, the child demonstrated an ability to encode upper and lower case letters, and he demonstrated age appropriate punctuation skills. He reportedly reversed the letters R, P, and E. His writing skills were reported to range from a grade equivalent of 1.5 in written expression to 2.8 in dictation.

        A speech/language evaluation was also conducted on May 13, 1995, when the child was approximately eight years and eight months old. He achieved an age equivalent score of 14.8 for his receptive vocabulary language skills. However, his language processing skills were reported to be at an age equivalent of 8.11, with significant deficits in his ability to construct a story. At the hearing in this proceeding, a member of the CSE opined that the child's difficulty in constructing a story was indicative of a deficit in the child's sequencing ability. The evaluator reported that the child manifested processing delays in responding to questions during an assessment of his spontaneous speech. She recommended that remediation for the child should focus upon improving his expressive communication skills in the classroom, and that the boy should be re-evaluated in the Spring of 1996.

        An occupational therapist, who evaluated the child on May 23, 1995, reported that the child switched hands while performing tasks, and that he exhibited below age expectancy skills in the areas of focus, balance, proprioception sensory integration and body awareness The child's fine motor skills were described as intact, but clumsy because of his decreased focus and "bimanual dominance activity" (he switched hands while holding a pencil). The occupational therapist reported that the child's perceptual motor skills were poor, and noted a problem with his graphomotor skills with regard to spatial orientation. The occupational therapist also reported that the child was poorly oriented, and had difficulty accepting instructions and directions. She recommended that the child receive occupational therapy twice per week, 30 minutes per session, to improve his graphomotor skills, general proprioception, motor coordination, and balance.

        The child's physician completed a health information form on which he indicated that the child had allergies, and took the medicine Cylert (while not indicated on the form, the medicine was apparently taken to control the child's ADD). In the child's social history, the child's mother indicated that the child had suffered a febrile seizure at the age of one and one half.

        The CSE met on June 30, 1995, to review the results of the child's evaluation, and to determine whether the child should be classified as a child with a disability and provided with special education. The child's individualized education program (IEP) which the CSE prepared on June 30, 1995 indicated that the CSE consisted of an educational evaluator, a school social worker and a school psychologist. The child's mother attended the meeting, but the child's private school teacher did not attend or participate in the CSE meeting. Respondent has acknowledged that the CSE lacked the required parent member (cf. Section 4402 [1][b][1] of the Education Law). Federal regulation (34 CFR 300.344 [a][2]) and New York State Education Law Section 4402 (1)(b)(1) require that a child's teacher be a member of the CSE which conducts a review, or makes a recommendation for services to be provided to the child. While respondent could have satisfied the requirement that the child's teacher attend the meeting by assigning any teacher qualified to provide education in the type of program in which the child could be placed, it did not do so. The educational evaluator who did attend the CSE meeting, while reportedly qualified to instruct children with learning disabilities, could not serve simultaneously as the special educator member of the CSE and the child's teacher (34 CFR 300.344 [a][1] and [2]). Therefore, the CSE lacked two required members.

        The invalidly composed CSE recommended that the child be classified as learning disabled (see 8 NYCRR 200.1 [mm][6]). The IEP did not reveal the basis for the CSE's recommendation. Nevertheless, the parties do not dispute the appropriateness of the child's classification as learning disabled, and I do not reach the appropriateness of that classification (Hiller v. Bd. of Ed. Brunswick CSD et al., 674 F. Supp. 73 [N.D. N.Y., 1987]; Application of a Child with a Disability, Appeal No 93-42).

        The CSE also recommended that the child be educated in a full-time regular education program, with testing modifications including the waiver of time limits, separate location, and having test questions read to him. The CSE recommended that the child receive occupational therapy twice per week, thirty minutes each session. His annual goals for the related service of occupational therapy were to improve his graphomotor skills, proprioception, motor coordination and balance, body awareness, and spatial orientation. The child's IEP did not include any educational annual goal, but it did include two social/emotional goals: "The youngster will learn to interact with others," and "The youngster will learn to appreciate his strengths and weaknesses." However, the CSE did not recommend that the child receive counseling, reportedly because he was receiving private counseling at the time of his referral. The record does not reveal whether he is receiving private counseling during the 1995-96 school year. At the hearing in this proceeding, a member of the CSE testified that:

" ... the reason why we offered what we did, was because he presented to us [as] a child with handwriting problems ... There was [sic] some language components here, but the speech evaluator was not recommending related service. He scored above grade level on the educational component. He had an above average IQ." (Transcript, page 64)

        The CSE member also testified that the psychologist's recommendation that the child receive a neurological evaluation was discussed at the CSE meeting, but the CSE did not defer making its recommendation until a neurological evaluation could be performed. She explained that:

" ... the general operating procedure is to make a decision with what you have. And we spoke with mom [petitioner], and we also said that we had no teacher reports, and we needed more documentation, if she wanted to have any further Board plan, and she agreed." (Transcript, page 72)

        The CSE did not recommend a specific placement for the child. In a final notice of recommendation which was dated August 3, 1995, respondent offered the child a placement in P.S. 166. In the interim between the CSE meeting and the mailing of the final notice of recommendation, petitioner requested that an impartial hearing be held. She enrolled the child in Columbia and its LRC program for the 1995-96 school year.

        The hearing in this proceeding was held on October 23, 1995, for the purpose of determining whether the child's parents should be reimbursed for their expenditure of approximately $29,000 for the child's combined tuition in Columbia and its LRC program. In her decision which was rendered on December 21, 1993, the hearing officer found that the board of education had failed to meet its responsibility to offer petitioner's son a free appropriate public education (see 20 USC 1401 [a][18]) for the 1995-96 school year. Her finding was premised upon the facts that the CSE review meeting of June 30, 1995 was not held within the prescribed time (see 8 NYCRR 200.4 [c]); that the CSE had not obtained an observation of the child in his regular educational setting; and that the CSE lacked all of its required members. In addition, the hearing officer found that the CSE had failed to recognize that the child had special education needs other than his deficient graphomotor skills, and that its recommendation failed to addressed those needs. The hearing officer further found that the regular education instruction provided by Columbia did not address the child's special education needs, and she denied the parents' request for reimbursement of $14,350 for their expenditure for the child's regular education tuition in Columbia. However, she found that the services provided to the child in Columbia's LRC program by a learning specialist and a speech/language therapist did address the child's special education needs. The hearing officer found that the tuition charge of $15,250 for the LRC program which provided the child with one 40 minute period per day of individual tutoring from a learning specialist, and two sessions per week of speech/language therapy was disproportionate to the amount of services which the child had received. She directed respondent to reimburse the child's parents for the services provided by LRC at the rate which respondent pays related service providers on a per session basis.

        A board of education may be required to pay for education 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 is 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 board of education 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, the board of education must show that the recommended program is reasonably calculated to allow the child to receive educational benefits (Bd. of Ed. Hendrick Hudson CSE 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]). In this instance, respondent acknowledges that it failed to offer the child an appropriate placement for the 1995-96 school year, because of the CSE's procedural errors. Therefore, petitioner has prevailed with respect to the first Burlington criterion, i.e., were the services offered by the board of education inadequate or inappropriate?

        Petitioner bears the burden of proof with regard to the appropriateness of the services which she has obtained for the child at Columbia during the 1995-96 school year (Application of a Child with a Disability, Appeal No. 94-29; Application of the Bd. of Ed. of the Monroe-Woodbury CSD, Appeal No. 93-34; Application of a Child with a Disability, Appeal No. 95-57). In order to meet her burden, petitioner must show that the services were "proper under the act" [Individuals with Disabilities Education Act] (School Committee of the Town of Burlington, supra 370), i.e., that the private school offered an instructional program which met the child's special education needs (Application of a Child with a Disability, Appeal No. 94-29). The private school need not employ certified special education teachers, nor have its own IEP for the child (Application of a Child with a Disability, Appeal No. 94-20). In this instance, the hearing officer found that the individual tutoring and speech/language therapy which the child is receiving in the LRC program do address the child's special education needs. Respondent has not cross-appealed from the hearing officer's finding, which is therefore final (34 CFR 300.509).

        Petitioner contends that the hearing officer erred by not ordering respondent to pay for all of the child's tuition in Columbia and its LRC program. She argues that her child is enrolled in two distinct, yet interrelated, programs which provide the child with a unique mainstreaming, i.e., regular education, experience. Petitioner also argues that by ordering reimbursement only for the child's tutoring and speech/language therapy, the hearing officer neglected the other services which the child receives in the private school. However, she does not identify what those other services are. Indeed, there is very little information in the record before me with regard to the child's instructional program in Columbia during the 1995-96 school year. The Coordinator of the LRC was the only witness from Columbia to testify at the hearing. She testified that the child's regular education class in Columbia consisted of 22 children, who were taught by two teachers. The children are divided into smaller instructional groups. Petitioner's son is reportedly in a group of five children for reading. The record does not reveal what subjects of instruction are taught, or provide any more information about his instructional program in regular education. The Coordinator testified that the child's LRC tutor worked with the child to improve his writing and mathematics skills. She did not describe the nature of the services provided to the child by the LRC speech/language therapist.

        With regard to the interrelationship of Columbia's regular education and its LRC program, the LRC Coordinator testified that the programs are administratively separate, with separate enrollments in each program. Although all children in the LRC program are also enrolled in Columbia, only about 15 of the slightly more than 200 children in Columbia's elementary school level programs are enrolled in the LRC program. The LRC Coordinator testified that the LRC specialists coordinate their activities with those of their student's regular education teachers. From the Coordinator's testimony as well as the written evidence which petitioner submitted regarding the child's instructional program during the 1994-95 school year, it would appear that the LRC staff reinforce the instructional activities which occur in Columbia's regular education program, in a manner analogous to that of resource room services. However, I find that there is no basis in the record before me for concluding, as petitioner argues, that the two programs are inextricably linked. In the absence of significant information about the Columbia instructional program, and the manner in which it addresses the child's academic needs, I find that the hearing officer correctly determined that the child's parents are not entitled to be reimbursed for their expenditures for the child's tuition in Columbia (Application of the Board of Education of the City School District of the City of Troy, Appeal No. 93-42; Application of a Child with a Disability, Appeal No. 94-15).

        Petitioner also challenges the hearing officer's decision limiting her reimbursement for the services provided by the LRC program to an amount which is comparable to what respondent pays for independent providers of resource room and related services, rather that the sum of $15,250 which petitioner and her husband reportedly will pay for the LRC program. Respondent reportedly pays for independent resource room services at the rate of $29.88 per session, and $45.00 per session for speech/language therapy.

        The reasonableness of the cost of the services which a parent has obtained for his or her child must be considered under the third Burlington criterion, i.e., whether equitable considerations support the parent's claim for reimbursement (Florence County School District Four v. Carter by Carter, supra). At the hearing in this proceeding, the LRC Coordinator acknowledged that LRC tuition for services provided on a part-time basis was approximately comparable to the full-time tuition rates of other private schools in the New York City area. I find that the hearing officer did not abuse her discretion by limiting the amount of petitioner's reimbursement.

        Finally, I must note that this is the second appeal in less than a week, in which I have found that the CSE of Community School District 3 failed to conduct the required observation of a child referred to it (see Application of a Child with a Disability, Appeal No. 96-1). I further note that within the past twelve months, there have been six other appeals in which the CSE of Community School District 3 has been found by either a hearing officer or a State Review Officer to have purported to function without each of its required members in attendance. Within that same time period, there have been nine appeals in which the CSE of Community School District 3 has either conceded that it did not offer, or was found not to have offered, a timely recommendation or placement. It is imperative that respondent exercise greater supervision over this CSE. I will also ask the State Education Department's Office of Special Education Services to provide technical assistance to the CSE to ensure that its members understand, and adhere to, the standards and duties imposed upon a CSE.





Dated: Albany, New York __________________________
March 25, 1996 ROBERT G. BENTLEY