The State Education Department
State Review Officer

No. 96-31

 

 

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

Appearances:
Neal H. Rosenberg, Esq., attorney for petitioner

Hon. Paul A. Crotty, Corporation Counsel, attorney for respondent, Geoffrey Lieber, Esq.,of counsel

 

DECISION

        Petitioner appeals from a decision of an impartial hearing officer which upheld the recommendation by respondent's committee on special education (CSE) that petitioner's son be educated in regular education classes, with consultant teacher services (see 8 NYCRR 200.1[l]), during the 1995-96 school year. The impartial hearing officer denied petitioner's request that respondent be ordered to reimburse her for the cost of her expenditures for the boy's placement in the Stephen Gaynor School for that school year. The appeal must be sustained.

        In July, 1994, petitioner referred her son, who was then nine years old, to the CSE of Community School District 11. Petitioner indicated in her referral that her son would attend the Stephen Gaynor School in September, 1994, and that she sought to obtain transportation for him to the private school (See Section 4402 [4][d] of the Education Law). The child had attended P.S. 89 for kindergarten, first and second grades, and P.S. 83 for third grade. Prior to his referral to the CSE, the child repeated the third grade, at petitioner's request, in the Chapman School, a private school in Bronxville, New York.

        In lieu of performing its own psychological evaluation, the CSE relied upon a private evaluation, which was performed in August, 1994. The evaluator reported that the child had achieved a verbal score of 106, a performance IQ score of 98, and a full scale IQ score of 102. She noted that the boy evidenced a relative weakness in spatial perception, and that additional testing revealed that he had a substantial deficit in his visual motor integration skills. The evaluator also indicated that the child appeared to have a mild expressive language deficit, and suggested that he be evaluated by a speech/language specialist. The child's physician reported that the child had no health limitations, and an audiologist reported that the child's hearing and ability to discriminate speech were within normal limits. In February, 1993, the child's eyes were examined by an optometrist in the State University of New York College of Optometry. The optometrist diagnosed the child as having "convergence insufficiency", and recommended that the child receive visual training.

        One of respondent's educational evaluators who tested the child in August, 1994, reported that the child's receptive language skills were above average, while his expressive language skills were both age and peer appropriate. The child achieved a grade equivalent composite reading score of 4.8, but reportedly had great difficulty decoding multi-syllabic words. He achieved a grade equivalent score of 4.2 in mathematics. The educational evaluator reported that the child wrote in complete sentences, and that his spelling was at the fourth grade level. In a separate speech/language evaluation which was also performed in August, 1994, the child was found to have good auditory comprehension skills, and age appropriate expressive and receptive vocabulary skills. The evaluator reported that there was no indication that the child had any speech/language delay.

        In September, 1994, the CSE of Community School District 11 recommended that the child not be classified as a child with a disability. Petitioner requested that a hearing be held to review the CSE's recommendation. The hearing was held on October 11, 1994. The hearing officer noted that the CSE had failed to perform an observation of the child, who was then attending the Stephen Gaynor School. With the agreement of the parties, the hearing officer dismissed the proceeding without prejudice, to afford the CSE an opportunity to evaluate the child. The hearing officer also ordered the respondent to transport the child to the Stephen Gaynor School.

        The child was observed during a social studies class in his private school, on October 14, 1994. The observer noted that the child actively participated in the class discussion, and that he acted appropriately when instruction in handwriting was subsequently given to the class. On November 18, 1994, the child's teacher in the Stephen Gaynor School reported that the child had organizational problems which affected his ability to listen, read, and remain on topic while speaking. She indicated that the child's ability to learn had been enhanced by the structured setting which her class afforded him.

        On November 18, 1994, the CSE reconvened, and again recommended that the child not be classified. Petitioner reportedly did not seek review of the CSE's recommendation, until February 28, 1995, when she asked for an impartial hearing. At that hearing, she requested that the hearing officer find that her son was learning disabled, and that he order respondent to reimburse her for her expenditures for the child's tuition at the Stephen Gaynor School during the 1994-95 school year. In his decision which was rendered on April 13, 1995, the hearing officer found that the CSE had not met its burden of proof to support its recommendation that the child should not be classified. He also found that the child should be classified as learning disabled because he reportedly had a severe discrepancy between his intellectual ability and his achievement in reading. The hearing officer further found that respondent had failed to offer the child an educationally appropriate placement for the 1994-95 school year.

        With regard to petitioner's request for tuition reimbursement, the hearing officer noted that the Stephen Gaynor School, in which petitioner had unilaterally enrolled her child, had not been approved by the State Education Department as a school for the education of children with disabilities. However, he further noted that reimbursement for tuition at an unapproved school was a permissible remedy under the Individuals with Disabilities Education Act (Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7, [1993]). Applying the criteria for tuition reimbursement which the U.S. Supreme Court articulated in its decision in School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985), the hearing officer found that petitioner had satisfied all three criteria for reimbursement. He ordered respondent to reimburse petitioner for the cost of the child's tuition at the Stephen Gaynor School for the 1994-95 school year. In addition, the hearing officer directed the CSE to prepare an individualized education program (IEP) for the child, on a timely basis for the 1995-96 school year.

        Respondent did not appeal from the hearing officer's decision. Petitioner, who is a school psychologist for a school district in Westchester County, was notified by respondent that its CSE of Community School District No. 11 would convene on May 11, 1995, to prepare the child's IEP for the 1995-96 school year. At the hearing in this proceeding, petitioner testified that she arranged with her employer to attend the CSE meeting. However, on May 11, 1995, petitioner was advised by the CSE of Community School District No. 11 that the child's case had been transferred to the CSD of Community School District No. 3, in which the Stephen Gaynor School is reportedly located. She was thereafter informed that the CSE of Community School District No. 3 would meet with her on June 2, 1995. Once again, petitioner arranged to be absent from work in order to participate in a CSE meeting. The CSE meeting was not held on June 2, 1996, reportedly because the child's teacher was unavailable to participate in the meeting.

        The child's annual review, at which his IEP for the 1995-96 school year was prepared, was held on June 13, 1995. Petitioner testified that she was informed on June 2, 1995 that the CSE would meet with her on June 13, 1995, although she had indicated to the CSE's representative that she was unlikely to be able to absent herself from work to attend. She also testified that at approximately 9:00 a.m. on June 13, 1995, she advised the CSE by telephone that she could not attend its meeting in person. Petitioner was reportedly advised that the CSE would "teleconference" with her, i.e., allow her to participate by telephone in the CSE's annual review of her child. It should be noted that Federal regulation provides that:

"If neither parent can attend, the public agency [CSE] shall use other methods to ensure parent participation, including individual or conference telephone calls." (34 CFR 300.345 [c])

        The CSE met without either petitioner, or the child's teacher. However, the teacher, Ms. Priest, reportedly participated by telephone in the CSE meeting on June 13, 1995. In any event, the CSE recommended that the child be classified as learning disabled, for the 1995-96 school year. At the hearing, Ms. Edelman, a member of the CSE, testified that the child needed to improve his reading decoding and comprehension skills, and to address certain deficits in his mathematics skills. The CSE recommended that the child be enrolled in regular education classes, and that he receive the services of a consultant teacher for three "periods" per week. The child's IEP did not define the term "period", or otherwise reveal the amount of time the child would receive consultant teacher services (cf. 34 CFR Part 300, Appendix C, Question 51). Although the IEP which is in the record of this appeal purports to have one annual goal for the improvement of the child's mathematical skills, and two annual goals for the improvement of his reading skills, I note that the two pages of reading annual goals and short-term objectives are in fact duplicates.

        Petitioner testified that at approximately 10:30 a.m. on June 13, 1995, she received a telephone call from a representative of the CSE, who informed her that the CSE had conducted its review and made its recommendation for the child's educational program. She was also advised that she would receive a copy of the child's IEP. Petitioner testified that she expressed her disagreement with the CSE's recommendation to the CSE's representative.

        A notice of recommendation, dated July 20, 1995, was sent to petitioner, indicating that the CSE recommended that " ... your child is not in need of special education and should remain in general education" (Exhibit 15). Notwithstanding its misleading wording, the notice was accompanied by a copy of the CSE's actual recommendation, i.e., the child's IEP. The notice of recommendation and the IEP did not indicate a specific placement for the child because the CSE recommended that he be placed in respondent's regular education program. The CSE representative testified at the hearing that the child would have attended the elementary school in his attendance zone. However, petitioner chose to maintain the child's placement in the Stephen Gaynor School for the 1995-96 school year.

        On or about September 15, 1995, petitioner requested that an impartial hearing be held to review the CSE's recommendation. The record which is before me indicates that a hearing officer was assigned to the case on February 15, 1996. At the hearing, petitioner's attorney indicated that he did not receive a response to petitioner's request for a hearing, until after he sent a second letter on January 25, 1996. Thereafter, the parties jointly requested a postponement of the hearing. The hearing officer agreed to schedule the hearing to take place on March 6, 1996. On that date, the hearing was held before a different hearing officer.

        The hearing officer rendered her decision on April 10, 1996. She found that the child had a mild and subtle language disorder, which was primarily manifested in the child's difficulty comprehending the main idea of a complex topic, or story, and in successfully differentiating between the relevant and the irrelevant. Notwithstanding his disability, the child had managed to perform at or above his grade level in all subjects, including reading and mathematics. The hearing officer further found that the presence of a consultant teacher in the child's regular education class would be " ... especially suited to address his needs". She noted that there was no evidence that the community school district had any prior experience with consultant teachers, but that fact did not establish that the district could not have provided adequate consultant teacher services to the child. The hearing officer found that respondent had met its burden of demonstrating that it had offered an appropriate educational placement to the child. She further found that there had been no violation of petitioner's due process rights.

        I note that at the hearing in this proceeding, the CSE's representative referred to the classification of the child as learning disabled having been "imposed upon" the board of education, and at least one of respondent's witnesses expressed her belief that the child did not meet the criteria for classification as learning disabled. However, the CSE recommended that the child be classified as learning disabled, and respondent may not challenge the recommendation of its own CSE. Petitioner does not contest the child's classification as learning disabled. Since the issue of the child's classification is not in dispute, I do not reach that issue (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).

        Petitioner contends that the hearing officer failed to consider that her due process rights were violated by the CSE because it denied her a meaningful opportunity to participate in the development of her son's IEP for the 1995-96 school year. She also contends that the hearing officer erred in finding that her son's IEP for the 1995-96 school year would adequately address his educational needs.

        The Individuals with Disabilities Education Act (20 USC 1400 et seq.) emphasizes the participation of parents in the development of their children's IEPs (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]. Federal and State regulations accord parents the role of participants, not merely attendees, at meetings held to develop IEPs. A CSE is not obligated to accede to the parents' wishes in drafting a child's IEP. However, it must provide the parents with a meaningful opportunity to interact with the members of the CSE (Application of a Child with a Handicapping Condition, Appeal No. 90-13).

        Respondent argues that it afforded petitioner that opportunity at the CSE meeting which was held on June 13, 1995, because she was given the opportunity to participate by telephone. In its answer, respondent asserts that the child's mother was telephoned, after the members of the CSE convened and discussed the child's case, and that "...no law requires petitioner to be made a party to all discussions with the CSE members." At the hearing, respondent's witnesses conceded that the CSE contacted petitioner, after it had discussed the child's abilities and needs with his private school teacher. Petitioner had no part in that discussion. Indeed, she testified at the hearing that when she did speak to the CSE, she asked its members to tell her what the child's teacher had told the CSE. Petitioner also testified that she was told by the CSE what it had decided to recommend for the child's educational program, and that she would receive a copy of the IEP. Respondent has not refuted, or indeed denied, petitioner's description of what happened to her on June 13, 1995.

        The State Review Officer has repeatedly held that a CSE does not fulfill its obligation to afford parents a meaningful opportunity to participate in the development of their children's IEPs, by merely listening to the parents' concerns and then unilaterally preparing the IEPs (Application of a Child with a Handicapping Condition, Appeal No. 91-13; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Child with a Disability, Appeal No. 93-42). Upon the record before me, I find that respondent's CSE failed to afford petitioner a meaningful opportunity to participate in the development of her son's IEP. While not all procedural flaws in the preparation of a child's IEP constitute a denial of a free appropriate education (FAPE) for the child, a serious infringement upon a parent's right to participate in the development of the IEP may constitute a denial of FAPE (W.G. v. Bd. Of Trustees of Target Range Sch. Dist. No. 23, 960 F.2d 1479 [9th Cir., 1992]). I find that petitioner's rights were seriously infringed by the CSE.

        Even if petitioner had been afforded a meaningful opportunity to participate in the development of the boy's IEP, I would nevertheless be constrained to find that respondent had not met its burden of demonstrating the appropriateness of the program recommended by its CSE (Matter of Handicapped Child, 22 Ed. Dept. Rep.; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Child with a Disability, Appeal No. 93-9). The child's IEP indicated that the child would improve his reading skills, by applying multisensory strategies to assist him in decoding words, adjusting his reading rate and reading strategies to reflect the materials being read, and by applying various techniques to improve his comprehension, and ability to make inferences or predictions based upon the text he has read. The child's IEP short-term objectives which supported his annual goal with regard to reading suggest that the child required specialized instruction to address some significant educational needs. Similarly, the IEP short-term objectives which supported his IEP annual goal of improving his mathematics skills suggest that the child required specialized assistance to improve his ability to perform certain mathematical operations, e.g., long division, and to solve word problems. Although respondent's witnesses opined that a consultant teacher could help the child achieve his annual goals by working with him three times per week, as provided in his IEP, I find that no one has explained how this would be done. Indeed, none of the witnesses could testify that consultant teachers were even available in Community School District No. 11, and the witnesses did not appear to have a clear understanding of what a consultant teacher would do.

        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, supra). As noted above, the fact that the Stephen Gaynor School is not approved as a school for children with disabilities by the State Education Department is not dispositive of petitioner's claim for tuition reimbursement (Florence County School District Four et al. v. Carter by Carter, supra). I have found that petitioner has prevailed with respect to the first Burlington criterion for tuition reimbursement, i.e., that respondent failed to offer her son an appropriate educational program for the 1995-96 school year.

        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 Stephen Gaynor School 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 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).

        At the hearing, the child's teacher in the Stephen Gaynor School during the 1995-96 school year testified that the child was disorganized, and that his disorganization was manifested in written and spoken language. Although the child was reportedly able to provide short answers to direct questions, his teacher testified that the child was less able to draw inferences, or make connections than his classmates. As an example, she testified that the boy could read a significant portion of a book, yet he would not be able to identify the book's main character. The teacher testified that the child was impulsive, and appeared to lack internal structure, but did well in a structured setting, such as her class in the Stephen Gaynor School. The hearing officer noted in her decision that the teacher's testimony appeared to conflict with a written progress report which she had prepared in December, 1995 (Exhibit A). While I agree that there were some inconsistencies between the teacher's testimony and her written report, I find that the teacher nevertheless established that the child had a language based impairment, which required that he receive instruction with specialized techniques. I further find that her description of the boy's needs was consistent with the child's IEP goals and objectives, and that her testimony demonstrated that the child's needs were being met in the private school.

        Respondent argues that the Stephen Gaynor School was inappropriate because it was not the least restrictive environment for the child. Unilateral parental placements are subject to the Federal and State requirement that each child be placed in the least restrictive environment, 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]). However, the requirement that children with disabilities be placed in the least restrictive environment must be balanced against the requirement that they receive an appropriate education (Briggs v. Bd. Of Ed. Of the State of Connecticut, 882 F. 2d 688 [2d Cir., 1989]). As described by Ms. Melnick, the child's teacher, the Stephen Gaynor School provided the child with a structured and supportive environment which met his language based special education needs. Those needs included both the acquisition of certain skills, and the application of those skills to his instruction in the various "content" areas, i.e., throughout his curriculum. In the absence of any evidence of a less restrictive, yet equally effective, educational program for the child, I find that the Stephen Gaynor School was the least restrictive environment for the child. Therefore, petitioner has also prevailed with respect to the second of the three Burlington criteria for tuition reimbursement.

        The third and final criterion under the Burlington decision is whether equitable considerations support petitioner's claim for tuition reimbursement. The record reveals that petitioner has cooperated at all times with the CSE. Although she acknowledged at the hearing that she had contracted with the Stephen Gaynor School for the child's education during the 1995-96 school year, before the child's IEP was prepared on June 13, 1995, it does not follow that she should be denied tuition reimbursement. She made an effort to attend two CSE meetings, both of which were canceled. Petitioner also attempted to participate by telephone in the June 13, 1995 CSE meeting. Upon the record which is before me, I find that equitable considerations support her claim for tuition reimbursement. I note that respondent does not contend that the approximately $19,000 charged for tuition was unreasonable.

        Finally, I note that petitioner argues that she would be entitled to obtain tuition reimbursement in any event, because the Stephen Gaynor School was the child's pendency placement. Since I have found that she was entitled to receive tuition reimbursement for other reasons, I do not address that issue (Application of a Child with a Disability, Appeal No. 96-42).

 

        THE APPEAL IS SUSTAINED.

 

        IT IS ORDERED that the decision of the hearing officer is hereby annulled, and;

 

        IT IS FURTHER ORDERED that respondent shall reimburse petitioner for the reasonable cost of her son's tuition in the Stephen Gaynor School during the 1995-96 school year, upon presentation by petitioner to respondent of proof of her expenditures for such purpose.

 

Dated: Albany, New York __________________________
September 26, 1996 ROBERT G. BENTLEY