The State Education Department
State Review Officer
No. 96-21 & No. 96-23
Applications of a CHILD WITH A DISABILITY and of the BOARD OF EDUCATION OF THE MORRISVILLE-EATON CENTRAL SCHOOL DISTRICT for review of a determination of a hearing officer relating to the provision of educational services to the child by the board of education
Ferrara, Fiorenza, Larrison, Barrett and Reitz, P.C., attorney for the board of education, Susan T. Johns, Esq., of counsel
The mother of a child with a disability and the Board of Education of the Morrisville-Eaton Central School District have separately appealed from the decision of an impartial hearing officer regarding the services to be provided to the child. Since both appeals arise from one hearing officer's decision, they have been consolidated for purposes of this decision. The board of education appeals from the hearing officer's order that it reimburse the child's mother in the amount of $18,850 for her expenditures for the child's tuition in the private Gow School during the 1994-95 school year.
The child's mother, hereinafter, the "parent", appeals from the hearing officer's alleged failure to order the board of education to reimburse the parent for the cost of transporting the child between his home and the Gow School, the cost of his books in the private school, and interest on loans which the parent incurred to pay for the child's tuition. She also seeks reimbursement for the costs which she and her lay advocate reportedly incurred in attending the hearing in this proceeding. The parent also asks that the board of education be directed to pay the Gow School the sum of $3,000, which is the amount of the scholarship which the private school reportedly gave to the child. The parent's appeal must be sustained in part. The board's appeal must be dismissed.
In July, 1986, after completing the "pre-first" grade in the public schools of Oneida, N.Y., the child was evaluated by a private psychologist because the child had reportedly experienced difficulty in school. The child achieved a verbal IQ score of 103, a performance IQ score of 77, and a full scale IQ score of 89. The psychologist reported that the child evidenced sequencing problems, i.e., maintaining a clear perception of the sequence of events, and opined that this difficulty probably influenced the child's academic and social behavior. The child also reversed and inverted letters. The psychologist noted the discrepancy between the child's verbal and performance IQ scores, but suggested that the child's lower performance IQ score was of limited significance. He opined that the child had an attention deficit disorder with hyperactivity (ADHD). In addition to his attention, spatial organization, and sequencing deficits, the child also evidenced auditory perceptual problems. The psychologist opined that the child's variable personality traits were probably a function of his ADHD.
The child remained in the Oneida Public Schools, where he reportedly received remedial instruction in reading and mathematics, through the 1989-90 school year. In the Fall of 1990, the child entered the fifth grade in respondent's elementary school. On October 2, 1990, the parent referred the child to respondent's committee on special education (CSE). In a social history, she indicated that the child had previously been taking medication to control his ADHD, but was no longer taking the medication. The parent also indicated that the child's behavior at home was unacceptable. The child, who was observed in his classroom, shortly after his referral, was described as distracted by noise outside the classroom and by people walking by his desk. The observer reported that the child was refocused by his teacher seven times within 30 minutes.
Respondent's school psychologist evaluated the child, in October, 1990. He reported that child had achieved a verbal IQ score of 91, a performance IQ score of 74, and a full scale IQ score of 81. The child demonstrated weaknesses in perceptual organization, and freedom from distractibility, as well as visual motor integration skills. On achievement tests, the boy achieved grade equivalent scores of 4.8 in reading decoding, 2.9 in reading comprehension, 4.1 in mathematical computation, 7.4 in mathematical applications, and 4.6 in spelling. The boy's teachers completed a behavioral checklist which indicated that he had a considerable number of problem behaviors. The school psychologist made several suggestions to enhance the child's performance in school. On November 6, 1990, the child achieved a standard score of 31 in spontaneous writing on the Test of Written Language.
On November 8, 1990, the CSE recommended that the boy be classified as learning disabled in reading comprehension and writing, and that he receive resource room services for 180 minutes each week. The boy reportedly received counseling which the parent paid for during the 1990-91 school year. The CSE conducted its annual review of the child on April 18, 1991, to determine the child's placement for the 1991-92 year, during which he would be in the sixth grade, the CSE recommended that he continue to receive 180 minutes per week for resource room services to address his reading and organizational skill deficits. It further recommended that the child receive 30 minutes of individual counseling per week to improve his ability to make decisions, interact in socially appropriate ways, and to increase his self-esteem. On standardized achievement tests administered to him in April, 1992, as he was nearing the end of the sixth grade, the child achieved grade equivalent scores of 7.1 in letter- word identification, 11.9 in word attack, 7.4 in reading vocabulary, and 5.1 in passage comprehension. The child's report card for the 1991-92 school year reveals that he received passing grades in each of his subjects, although his grades in mathematics markedly decreased during the school year.
On June 18, 1992, the CSE met again, to prepare the child's individualized education program (IEP) for the 1992-93 school year, when the child was to enter the seventh grade in respondent's middle school. The CSE recommended that the child continue to receive 180 minutes of resource room services, and 30 minutes of individual counseling per week, during the 1992-93 school year. The child's IEP indicated that he had made good academic progress, but continued to be weak in drawing conclusions, making inferences, predicting outcomes, and following directions. The IEP also indicated that the child continued to need structure, and help in improving his organizational skills. Specifically, the IEP indicated that the child's completion of homework assignments needed to be monitored.
During the 1992-93 school year, the child's performance in English varied greatly. His quarterly marks ranged from 50 for the first quarter to 90 for the last quarter. He received a grade of 47 on his final exam in English. The child's report card indicated that he received final grades of 67 in English, 68 in social studies, 72 in mathematics and 69 in health/science. His special subject grades ranged from 85 in technology to 79 in physical education. In April, 1993, he achieved grade equivalent scores of 7.1 in letter-word identification, 11.8 in word attack, 6.7 in reading vocabulary, and 9.0 in passage comprehension. In language, he achieved grade equivalent scores of 5.6 for dictation, 4.2 for proofing, 4.8 for punctuation and capitalization, 4.8 for spelling, and 5.4 for usage.
On May 24, 1993, the CSE conducted its annual review of the child. The parent provided the CSE with some information about attention deficit disorder (ADD), and asked the CSE to recommend that mandatory in-service education about ADD and learning disabilities be provided to all teachers. She also requested that the child's teachers meet with her prior to September, 1993, to discuss the child's IEP, the side effects of his medication for ADD, a behavior "contract", the boy's long-term assignments, and ten-week course outlines. On the child's IEP, the CSE recommended that the child receive 180 minutes of resource room services per week (one period per day). However, the child's IEP has a handwritten notation that the child should receive those services "360 minutes per week pending schedule." At the hearing in this proceeding, the CSE chairperson testified the CSE wished to have the child receive as many as 360 minutes of resource room services per week, but was uncertain whether the child's schedule could be arranged to provide the additional resource room services. The child's resource room teacher testified that the amount of resource room services was increased to 360 minutes per week (two periods per day) during the 1993-94 school year. The CSE also recommended that the child continue to receive individual counseling during the 1993-94 school year.
The boy's IEP indicated that his teachers had found his speaking and critical thinking skills to be acceptable, but that he needed to improve his organizational, attentive, and listening skills. Although his reading comprehension had reportedly improved, it nevertheless needed to be further improved. The results of the standardized achievement tests which had been given the child in February, 1993 were attached to his IEP. He achieved grade equivalent scores of 7.1 in letter-word identification, 11.8 in word attack, 6.7 in reading vocabulary, and 9.0 in passage comprehension. His grade equivalent scores in language included 5.6 in dictation, 4.2 in proofing, 4.8 in punctuation and capitalization, 4.8 in spelling, and 5.4 in usage. The IEP also indicated that the child's behavior continued to fluctuate.
The record reveals that the child achieved averages of 80 in English, 65 in social studies, 65 in mathematics, 52 in science, 75 in French/Spanish 8, and 65 in technology for the first quarter of the eighth grade. The boy achieved grades of 61 in English, 70 in social studies, 50 in mathematics, 55 in science, 80 in French/Spanish 8, and 67 in technology, during the second quarter of the school year. Some of his teachers reported that the child's work habits and/or citizenship were poor. In the period from October, 1993 through January, 1994, the child was referred on nine occasions by his teachers for disciplinary infractions, including alleged failure to complete work, insubordination, and disruptive behavior in class. During the month of February, 1994 there were six disciplinary referrals of the child for allegedly failing to complete work, making inappropriate remarks to his teachers, and acting insubordinately.
On March 2, 1994, the parent met with the CSE to review the child's progress, and to discuss the counseling which was being provided to the child. The CSE chairperson, who is a certified school social worker, testified that she counseled the child at the beginning of the 1993-94 school year, and that a school guidance counselor also provided counseling to the boy. She conceded that she had not provided him with counseling once per week, as provided for in the boy's IEP. She further testified that around the middle of the school year counseling was provided on a "consultant" basis. The parent reportedly asked the CSE to consider employing one or more aides with the child. The high school principal reportedly agreed to raise some of the parent's concerns with the child's teachers. The CSE amended the child's IEP to restore the child's counseling as a direct service for 30 minutes each week, but made no other changes in the child's program.
During the third quarter of the 1993-94 school year, the child achieved grades of 70 in English, 78 in social studies, 50 in mathematics, 52 in science, and 40 in French/Spanish 8. Near the end of the quarter, the child was reportedly removed from his home and careers course, by agreement with his mother. In late March, or early April, 1994, the boy was reportedly removed from a remedial mathematics class, in which he had received individual instruction, so that he could spend additional time in the resource room. He was referred for disciplinary action on six occasions during March, 1994. He received a one-day in-school suspension for one of his alleged offenses. The record does not include any evidence of disciplinary referrals during April, 1994. However, the child's art teacher testified that the child was removed from her class in April, and completed art assignments at home, pursuant to an agreement between the parent and the principal. On May 3 and 4, 1994, the child received an in-school suspension for reportedly using obscene language with a teacher. His teachers referred him to the principal on six other occasions during May, 1994, for various alleged offenses. He was referred to the principal once in June, 1994, for allegedly being disruptive in his foreign language class.
On April 4, 1994, the child's academic skills were assessed by his resource room teacher, who used standardized tests for that purpose. At the time of his assessment, the child was in the latter half of the eighth grade. He achieved grade equivalent scores of 7.6 in letter word identification, 7.6 in word attack, 9.2 in reading vocabulary, and 10.0 in passage comprehension. In the area of language skills, he achieved grade equivalent scores of 5.9 for dictation, 5.8 for proofing, 6.3 for capitalization, 6.0 for spelling, 6.3 for usage, and 4.4 for writing samples. At the hearing in this proceeding, a BOCES school psychologist testified that the child's standard scores for reading were in the average range, as they had also been during the sixth and seventh grades. His standard scores for language skills during the seventh and eighth grades were described as being in the low average range. The resource room teacher did not test the child's mathematics skills, although the child reportedly received individual remedial mathematics instructions during much of the 1993-94 school year, and was failing eighth grade mathematics.
On May 9, 1994, a school psychologist from the BOCES evaluated the child. She reported that he had achieved a verbal IQ score of 77, a performance IQ score of 80, and a full scale IQ score of 77. Although these scores were lower than the scores he achieved when previously evaluated in 1990, the school psychologist noted that she had used a different test than was used in 1990, and opined that the decreased scores were not significant. The school psychologist summarized the responses given by the child's teachers to a questionnaire about the child. The boy's strengths were said to include his ability to complete assignments with 1:1 assistance and no distractions, ability to acquire vocabulary quickly in French, and good reading comprehension when assisted. His weaknesses included having trouble completing thoughts in writing, difficulty staying on task, poor organization skills, poor long-range task completion, poor social interactions, lack of interest in core subjects, weak test taking skills, and weak basic mathematics skills. The school psychologist recommended that the child's classification be changed from learning disabled to other health impaired, because there was not a significant discrepancy between his intellectual ability and academic achievement, and that ADD was the chief hindrance to the child's academic performance. She further recommended that the child's counseling should be increased to twice per week, and that a behavior monitoring program be established for him. The school psychologist also recommended that the child's mathematics skills be tested.
The CSE conducted its annual review on May 18, 1994. It considered the BOCES school psychologist's recommendation to change the child's classification to other health impaired, but voted to retain his classification as learning disabled. The child's resource room teacher recommended that the child continue to receive resource room services during the 1994-95 school year. At the hearing in this proceeding, the teacher testified that the child made progress towards achieving his IEP goals, but had not mastered any of his goals. For the 1994-95 school year, the CSE recommended that the child be enrolled in ninth grade regular education classes, "subject to passing [his] 8th grade subjects", with 270 minutes of resource room services per week. The CSE also recommended that the child receive 30 minutes of individual counseling, once per week. The child's IEP provided for various test modifications, including extended time limits, separate locations for taking tests, having test questions read to him, allowing him to record his answers in various ways, and a "spelling waiver." The IEP indicated that the child continued to show improvement in almost all areas, but that he needed better organizational skills. He was described in his IEP as usually getting along with his peers, but having difficulty controlling his behavior in disagreements with his teachers. It also indicated that the boy should have a behavior contract to "identify boundaries with immediate consequences." The child's IEP included annual goals for improved writing and study (organizational) skills, and a goal related to improving the child's behavior in the classroom.
At the hearing in this proceeding, the CSE chairperson and the school psychologist acknowledged that the IEP which was prepared at the May 18, 1994 CSE meeting did not completely address the child's needs. However, they asserted that the parent had urged the CSE to defer making its recommendation, until after the child had participated in the summer instructional program of the Gow School. The child attended the Gow School, which is located in South Wales, New York, during July and August, 1994. In a brochure which is part of the record, the Gow School describes itself as a college preparatory school for young men. It is not approved by the State Education Department as a school for children with disabilities. During the Summer of 1994, the child was enrolled in a science seminar, a pre-algebra mathematics lab, and a study skills course. He reportedly did well in the Gow School summer program.
The CSE met again with the parent on August 22, 1994. The CSE discussed the child's experience at the Gow School with a representative of the State Education Department. The CSE chairperson testified that the representative suggested that the child's classification be changed to multiply disabled, for the purpose of obtaining the Department's approval for State aid purposes of a residential placement for the child. The child's resource room teacher and the school psychologist said that they did not believe the suggested change of classification was warranted, but nevertheless supported the CSE's recommendation to do so. In any event, I am precluded from reaching the issue of the appropriateness of the child's alleged classification as multiply disabled because neither party has raised the issue (Hiller v. Bd. of Ed. Brunswick CSD et al, 674 F. Supp. 73 [N.D. N.Y., 1987]).
The parent enrolled the child, at her expense, in the Gow School for the 1994-95 school year. In a letter to the board of education, which was dated December 5, 1994, the parent requested that an impartial hearing be held to review the CSE's recommendation. She asked the board of education to provide a State approved school or program which would be appropriate to meet the child's needs. The parent also asked for neuropsychological, speech/language, occupational, and auditory processing evaluations of her son, and asserted that the school district had failed to implement the child's IEPs for the 1992-93 and 1993-94 school years. The board of education appointed the hearing officer in this proceeding, on December 13, 1994. The hearing began on February 1, 1995, and concluded on November 16, 1995.
The hearing officer rendered his decision on March 19, 1996. He noted that a board of education could 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 ). He also noted that the fact that the private school selected by the parents was not approved as a school for children with disabilities by the State Education Department did not preclude parents from obtaining tuition reimbursement (Florence County School District Four et al. v. Carter by Carter, _____ U.S. _____, 114 S. Ct. 361 ). The hearing officer found that the program which the board of education had offered the child for the 1994-95 school year was inappropriate. He premised his finding upon what he found were several procedural and substantive errors by the CSE during the 1992-93 and 1993-94 school years involving the child's triennial evaluation, preparation of his IEPs, dissemination of information about the IEPs to the child's teachers, and provision of services to the child. In essence, he found that the CSE had failed to recommend a more efficacious program for the child, despite having evidence that the child's programs during the 1992-93 and 1993-94 school years had not been successful. The hearing officer further found that the Gow School provided the child with an opportunity to be instructed in small classes, and to receive 1:1 assistance when necessary. He also found that equitable considerations supported the parent's claim for tuition reimbursement. The hearing officer ordered the Board of Education to reimburse the parent in the amount of $18,850 for the child's tuition in the Gow School during the 1994-95 school year, but denied the parent's claims for additional sums.
I will consider the board of education's appeal first, because the parent's right, if any, to the relief which she requests in her appeal is dependent upon a determination that the hearing officer correctly found that the parent should be reimbursed for the cost of the child's tuition in accordance with the Burlington and Carter decisions. The board of education acknowledges, in its appeal from the hearing officer's decision, that the IEP which its CSE prepared for the 1994-95 school year should have provided for the assignment of an individual aide to the child for special subject classes and the laboratory portion of his ninth grade science class, and should have provided for more counseling. It also acknowledges that the IEP should have included specific behavior modification provisions, and " ... perhaps annual goals in math." However, the board of education challenges many of the hearing officer's findings which led him to conclude that the board of education had failed to offer the child an appropriate educational program for the 1994-95 school year.
Before I consider the child's IEP, I must note that the board of education introduced into evidence a copy of a settlement offer which its attorney made to the parent on January 25, 1995. During the hearing, various witnesses referred to the educational program which had been proposed for the child in the settlement offer, which included the assignment of an individual aide for all regular education classes, the addition of group counseling, training for each of the child's teachers, and the development of a behavior management plan. The attorney's proposal, however bona fide, was not a specific recommendation by the CSE, which must make its recommendation before a board of education can implement a child's educational program (Application of a Child with a Handicapping Condition, Appeal No. 92-15). Therefore, I find that the appropriateness of the program offered by the board of education must be determined by the IEP which the CSE prepared at its meeting on May 18, 1994, and which it affirmed at its meeting on August 22, 1994.
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 CSD v. Rowley, 458 U.S. 176 ), and that the recommended program is the least restrictive environment for the child (34 CFR 300.550 [b]; 8 NYCRR 200.6[a]). An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the child's needs, provides for the use of appropriate special education services to address the child's special education needs, and establishes annual goals and short-term instructional objectives which are related to the child's educational deficits (Application of a Child with a Disability, Appeal No. 93-9; Application of a Child with a Disability, Appeal No. 93-12).
The child's IEP for the 1994-95 school year was reportedly based upon the results of the child's triennial evaluation, which should have been completed in the Fall of 1993, but was not performed until the Spring of 1994. State regulation requires that a physical examination be part of each triennial evaluation (8 NYCRR 200.4 [e]). The hearing officer found, and the board of education does not dispute, that the CSE did not obtain the results of a physical examination of the child. A physical examination would be especially significant for this child because of his diagnosis of ADHD, which was described as a neurological disorder.
The board challenges the hearing officer's finding that it failed to have the child observed in class. Although State regulation does not explicitly require that a child be observed in class, as part of a triennial evaluation, it does require that the " ... triennial evaluation shall be sufficient to determine the student's individual needs and continuing eligibility" (8 NYCRR 200.4 [e]). In this instance, there were serious questions about the manifestation of the child's ADHD in the classroom, and other management issues, such as his need for an aide in all or some of his classes. In addition, there were questions about his learning style and the educational services which he required. I find that the child's triennial evaluation should have included a classroom observation to enable the CSE to carry out its responsibility to recommend appropriate programs and services for the child.
The hearing officer also faulted the CSE for not having an assessment of the child's skills in mathematics. As noted above, the child's resource room teacher, who administered standardized achievement tests to the child in April, 1994, did not test the child's mathematics skills, notwithstanding the fact that the child was failing eighth grade mathematics while receiving individual remedial mathematics instruction. At the hearing, the child's mathematics teacher testified that the child had entered the eighth grade with a weak knowledge of mathematical concepts. Although his knowledge of concepts improved, his teacher testified that the child continued to have weak basic computational skills. The child was eventually evaluated in mathematics on February 3, 1995, when he was in the middle of the ninth grade. He reportedly achieved grade equivalent scores of 7.1 in mathematics calculation, 5.9 in applied problems, and 5.2 in quantitative concepts. I agree with the hearing officer that the boy's triennial evaluation should have included an assessment of his mathematical skills.
State regulation requires that students over the age of twelve receive an assessment to determine vocational skills, aptitudes and interests (8 NYCRR 200.4 [b][vii]). The CSE has not obtained such an assessment for this child. An adequate evaluation is essential for a CSE to plan an appropriate educational program for a child. The failure to conduct a physical examination may afford a basis for annulling a CSE's recommendation (Application of a Child with a Handicapping Condition, Appeal No. 92-12; Application of a Child with a Handicapping Condition, 30 Ed. Dept. Rep. 41). The failure to perform an adequate observation of a child may also afford a basis for annulling the CSE's recommendation (Application of a Child with a Handicapping Condition, Appeal No. 91-20; Application of a Child with a Handicapping Condition, 29 Ed. Dept. Rep. 256).
In addition, I must note that there is little evidence in the record that the CSE had been adequately apprised of the child's progress in achieving the annual goals and short-term objectives which were set forth on his IEP for the 1993-94 school year. The CSE chairperson conceded at the hearing that the child's IEP had not been annotated throughout the 1993-94 school year to document the extent of his progress. The child's resource room teacher, who was responsible for addressing the child's IEP goals relating to reading, writing, and study skills, testified that he had recorded the child's progress on documents which no longer existed. He also testified that the child's reading comprehension had improved during the 1993-94 school year and that he had made progress on his IEP objectives, but had not mastered any of them. A CSE must consider the degree to which a child achieved his or her IEP goals and objectives, in order to determine whether to include, modify, or drop these goals and objectives in subsequent IEPs. The CSE eliminated the child's 1993-94 annual goal in reading from the 1994-95 IEP, and modified some of his instructional objectives for writing, but retained his other goals and objectives. It recommended that he continue to receive the same amount of counseling and a reduced amount of resource room services for the 1994-95 school year (from 360 minutes per week to 270 minutes per week).
The CSE made its recommendations notwithstanding the fact that the child failed two of his core academic eighth grade courses, and had been frequently removed from his classes during the 1993-94 school year. Although it is by no means clear that the child was removed from class solely because he manifested signs of his disability, it is clear that his frequent removals should have induced the CSE to consider additional program modifications and services for the child to be provided during the 1994-95 school year. Upon the record before me, I am unpersuaded that the CSE adequately considered the child's levels of performance and needs, or recommended appropriate special education services for him.
Although I do not concur with each of the hearing officer's 30 findings, e.g., that the IEP for the 1994-95 school year did not indicate whether the child was to receive individual or group counseling, or that the CSE should have recommended family counseling, I do concur with his conclusion that the board of education did not meet its obligation to offer the child an appropriate educational program for the ninth grade by offering a continuation of the program which had not been successful during the eighth grade. Accordingly, I find that the board of education did not meet its burden of proof with respect to the first of three criteria in the Burlington decision for tuition reimbursement.
The child's parent bears the burden of proof with regard to the appropriateness of the services which the parent obtained for the child at the Gow School during the 1994-95 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 that burden, the parent must show that the services were "proper under the act" [Individuals with Disabilities Education Act] (School Committee of the Town of Burlington v. Department of Education, Massachusetts, supra 370), i.e., that the private school offered an educational 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).
The Gow School is a registered secondary school which reportedly prepares students for college within a multisensory instructional environment. The Assistant Headmaster testified that almost all of the approximately 150 students at Gow have been diagnosed as having learning disabilities, and almost all of them receive specialized instruction in the school's reconstructive language course. All students attend classes six days per week, and all participate in mandatory two-hour, supervised study halls six evenings per week. The Assistant Headmaster testified that most of the school's teachers were not certified by the State Education Department, but all were trained in the Orton-Gillingham methodology of instruction. There were four to six students in each class. Students receive additional instruction in tutorials to address areas of academic difficulty. A brochure of the school indicates that instruction in study skills is incorporated into the school's curriculum. Study skills include note taking, effective listening, use of a dictionary to differentiate shades of meaning, mnemonic devices, organization of paragraphs and sentences, and the "Survey, Question, Read, Recite and Review" technique for reading.
The record reveals that during the 1994-95 school year, the child was enrolled in pre-algebra, eastern civilization (history), English, computer, environmental science, and "reconstructive language" courses in the Gow School. The reconstructive language course involved instruction in phonics, spelling, vocabulary, and oral reading, using a variant of the Orton-Gillingham technique. In the first marking period, the child achieved the grades of B in his computer course, C in his reconstructive language course, and D in his other courses. By the end of the second quarter, his grades were B in computer, C in eastern civilization and science, D in pre-algebra and reconstructive language, and an "incomplete" in English. His grades improved in the third quarter when he achieved a B in computer, C in pre-algebra, eastern civilization, English, and science, and a D in reconstructive language. In the fourth quarter, the boy achieved the grade of B in English, C in pre-algebra, eastern civilization, and computer, and D in science and reconstructive language. The child's eastern civilization and English teachers indicated that the child's performance, in terms of completing homework assignments and actual achievement, had improved throughout the year. His science teacher indicated the child had been rude in class, and removed from class on some occasions during the fourth quarter. The child's mathematics teacher reported that the child's effort had been inadequate, and that he had difficulty remaining on task. He also reported that the child would not have earned the grade of C, except for the slower pace of the class of only four children, and his active intervention. The child's reconstructive language teacher reported that the child's attitude and effort had improved during the last quarter of the school year.
The board of education argues that the parent failed to show that the Gow School provided the child with specially designed instruction to meet the child's need. The record reveals that the child had academic deficits in written expression, spelling, and mathematics. He also had significant deficits in his organizational skills. He evidenced a need for a structured environment, which included predictable limits and consequences for exceeding those limits. The boy had difficulty completing assignments, including homework.
At the hearing, the child's English teacher was shown a copy of the IEP which the CSE had prepared for the 1994-95 school year. The teacher testified that each of the IEP instructional objectives for written expression had been addressed during the 1994-95 school year, and that the child had demonstrated progress in each area. The teacher further testified that the child's spelling had improved as a result of having taken the reconstructive language course. The child was initially enrolled in a mathematics class of six children. In February, 1995, he was assigned to a class of only four children to better address his needs. The child's mathematics teacher testified that he provided the child with additional instruction in his tutorial. At least part of the child's weakness in organizational skills was related to his ADHD. The Gow School addressed his organizational and attention deficits by providing him with small classes, and specialized techniques. The child was provided with teacher prepared notes to enable him to concentrate in class, and to have adequate and accurate notes to study. His English, social studies, and science teachers testified that they specifically instructed the child in how to study, and the use of compensatory techniques.
To address the child's difficulty in completing homework assignments, the private school provided mandatory study periods in the evenings, during which the teaching staff provided assistance as needed. The Assistant Headmaster testified that the child had been assigned to a small study hall of no more than fifteen students, because of his distractibility. He described the structured routine which students must follow from breakfast through the conclusion of the mandatory evening study hall. Although the child had some difficulty with his science teacher in the Gow School, most behavioral difficulties, including those with the science teacher, were addressed in the classroom. The child had a formal advisor, who testified that the child came to realize what his problems were, and how they should be addressed. In addition, the record reveals that the child was informally counseled by various faculty members. He also participated in an eight-session "Life Skills" program concerning communicating with others and coping with stress and frustration. I find that the Gow School addressed this child's special education needs during the 1994-95 school year.
The board of education argues that the hearing officer erred by denying the board's motion to introduce copies of the child's educational performance during the second quarter of the 1995-96 school year for the purpose of impeaching the testimony of the child's teachers that his behavior had begun to improve by the end of the 1994-95 school year. I disagree. Whatever the child's behavior may have been during the second quarter of the 1995-96 school year, it would not be persuasive evidence of his behavior during the preceding year, and would not afford a basis for impeaching the teacher's testimony.
The board of education also asserts that the Gow School was inappropriate for the child because it was not the least restrictive environment for him. The Individuals with Disabilities Education Act (20 USC 1400 et seq.) and State regulation (8 NYCRR 200.6 [a]) require that children with disabilities be educated in the least restrictive environment. That requirement applies to unilateral parental placements when tuition reimbursement is sought (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. of Ed. Fairport CSD et al., 92-CV-6286 [W.D. N.Y., 1994]). In applying the requirement to the facts of this case, I have considered the child's needs, and the availability of alternative sources of services. Although this child has many intact academic skills, he has significant organizational skill deficits which should be addressed in a coherent and consistent educational program. One of his major deficits involves the completion of homework and long-term assignments. Those tasks are performed after the traditional school day has ended, but at a time when the child nevertheless requires assistance. At the hearing in this proceeding references were made to various BOCES and private school programs, in addition to the board of education program. However, there is no evidence in the record of any viable alternative to the Gow School during the 1994-95 school year. Therefore, I find that the child's placement in the Gow School is consistent with the least restrictive environment requirement.
The third, and final, criterion for an award of tuition reimbursement is whether equitable considerations support the parent's claim for reimbursement. The board of education asserts that equitable considerations do not support the parent's claim because she "went to the CSE meeting in August, 1994 determined to place [the child] in the Gow School for the 1994-95 school year" (Memorandum of Law, page 32). However, the board of education does not assert that the parent failed to cooperate at any time. Indeed, the record reveals that the parent was actively involved in her son's education. She recommended a number of changes for her child's IEPs for both the seventh and eighth grades, and participated in meetings with the child's regular education teachers prior to the start of each grade, in order to inform them of his special needs. Upon the record before me, I find that equitable considerations support the parent's claim for tuition reimbursement. Having found that the board of education did not meet its burden of proof with respect to the appropriateness of the program it offered, and that the parent did meet her burden of proof with respect to the appropriateness of the services provided by the Gow School, I find that the board of education's appeal from the hearing officer's decision awarding tuition reimbursement must be dismissed.
In her appeal from the hearing officer's decision, the parent asserts that the board of education should be ordered to pay an additional sum of $3000 to the Gow School. At the hearing, she testified that the private school's tuition charge for the 1994-95 school year had been $21,850, but that the expenditure had been limited to $18,850, because the child had received a $3,000 scholarship from the Gow School. She conceded that neither she nor her son was obligated to reimburse the school for the amount of the scholarship. In its decision in School Committee of the Town of Burlington v. Department of Education, Massachusetts, supra, the Supreme Court held that a court may order school authorities to reimburse parents for their expenditures on private special education for a child. The $3,000 scholarship which the boy received from the Gow School was not an expenditure by the parent. Therefore, I find that there is no basis in law for parent's claim.
The parent also claims reimbursement for the interest which she paid on three loans which she reportedly took out to obtain money for the child's tuition bill. At the hearing, the parent briefly alluded to one loan which she had taken out. She attempted to introduce evidence of one of her loans, but was precluded by the hearing officer from doing so. In any event, there is no evidence in the record of this appeal of the interest which the parent in fact incurred for this purpose.
The parent also claims reimbursement for her expenditures for long distance telephone calls to the child, and for his clothing, and school supplies. However, I have previously found that expenditures of that nature are not reimbursable (Application of a Child with a Disability, Appeal No. 95-66). The child purchased his school books at the school store. His parent also seeks reimbursement for the cost of the school books. However, she has not demonstrated that she had asked the board of education to provide textbooks to the child, pursuant to Section 701 of the Education Law. Therefore, her claim must be denied (Application of a Child with a Disability, supra).
The parent also seeks to be reimbursed for her expenditures to transport the child to and from the Gow School during the 1994-95 school year. She introduced copies of Amtrak tickets, Thruway tolls, and gasoline receipts in support of her claim. State regulation provides for State reimbursement to school districts for the transportation costs of children placed in residential schools. Reimbursement is provided for transportation at the start and the end of the school year, and no more than three additional trips to and from school, except for such additional trips as may be necessary during periods when residential care is not provided (8 NYCRR 200.12 [a]). The evidence which the parent submitted indicates that the child traveled by car or train each month, from October, 1994 through May, 1995. In her petition, the parent acknowledges that her recovery of costs may be limited, and seeks payment "for at least five trips." Since I have no way of ascertaining from the record whether more than five trips would be reimbursable under the regulatory criteria, I will limit her recovery to no more than five trips. The parent must identify the trips as those taken at the beginning and the end of the school year, and no more than three additional trips during the school year. The board of education shall then reimburse the parent for the cost of the child's train tickets, or her gasoline bills and Thruway tolls.
The parent also appeals from the hearing officer's denial of her claim for compensation relating to her participation in the hearing. At the hearing, the parent introduced copies of her telephone bills, for the purpose of demonstrating that she had spent approximately $210 conferring with her lay advocate by long distance telephone. She reportedly spent another $20 for other long distance calls involving the hearing. She also claimed an expenditure of approximately $23 to send certain documents to her advocate. In addition, the parent asked that her lay advocate be reimbursed for the cost of her meals and travel, at the rate of $40 per day for fourteen days of hearings. Although the parent did not raise the issue at the hearing, she now asserts that she should be compensated for the ten days of work which she missed to attend the hearings, at the rate of $128 per day. I find that the hearing officer properly denied the parent's claim for what may be generally described as "costs." The Individuals with Disabilities Education Act provides that "the court" may award attorney's fees and related costs (20 USC 1415 [e]). The parent's entitlement, if any, to costs must be determined by a court of competent jurisdiction.
I have considered the parent's other assertions, and I find that they are without merit.
THE APPEAL OF THE BOARD OF EDUCATION IS DISMISSED.
THE APPEAL OF THE PARENT IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that the board of education shall reimburse the parent for her transportation expenditures, as outlined in this decision.
|Dated:||Albany, New York||__________________________|
|May 8, 1996||FRANK MUŅOZ|