The State Education Department
State Review Officer
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 Ellenville Central School District
Anderson, Banks, Curran and Donoghue, Esqs., attorneys for respondent, Daniel Petigrow, Esq., of counsel
Petitioner appeals from the decision of an impartial hearing officer which denied petitioner's request for an order requiring respondent to reimburse her for her expenditure of $265 in partial payment of her child's tuition at a private school during part of the 1994-95 school year. The appeal must be sustained.
Petitioner's son is twelve years old. He reportedly achieved his developmental milestones as an infant, within normal limits. The boy attended the Head Start program in respondent's school district. In September, 1988, the boy entered kindergarten in Ellenville. However, he transferred to a school in New York City, in March, 1989. In February, 1990, the child returned to Ellenville, and was placed in respondent's pre-first grade class. He was in regular education classes for the first and second grades, during the next two years.
When he was in the third grade during the 1992-93 school year, petitioner's son was classified as learning disabled by respondent's committee on special education (CSE). He was placed, with petitioner's concurrence, in a 12:1+1 special education class in the Ellenville Elementary School. The CSE recommended that the child remain in a self-contained special education class for the fourth grade during the 1993-94 school year, except for mathematics instruction which he was to receive in a mainstreamed, i.e., regular education, setting. The child's individualized education program (IEP) indicated that he was to receive individual counseling, three times per week. The IEP also indicated that the boy's reading skills were at the second grade level, and that his mathematics skills were at the third grade level. He reportedly had difficulty using correct grammar, syntax and punctuation in his written expression. The boy's IEP indicated that his classroom behavior seriously interfered with the instructional process, requiring the provision of additional supervision. He was described in the IEP as lacking confidence in his abilities and self-esteem. The boy also reportedly attempted to dominate his peers. His IEP included annual goals related to improving his reading and mathematics skills, as well as his behavior.
On December 9, 1993, the CSE met to review the child's educational program, because he was reportedly having behavioral difficulties in school. The CSE recommended that the child be placed in the "ALP" program of the Board of Cooperative Educational Services of Ulster County (BOCES), in which he was to receive instruction for all subjects in a 12:1+1 special education class. The child's IEP indicated that his reading skills remained at the second grade level, while his mathematics skills had reportedly increased to the fourth grade level. I note that the IEP description of the child's behavior and his management needs was not changed in the IEP which was prepared on December 9, 1993.
Petitioner objected to the CSE's recommendation that the child be enrolled in the BOCES ALP program which was reportedly located in New Paltz, New York. Although her consent was not required for the child to be placed in the ALP program because it was not his initial placement in a special education program (34 CFR 300.504 [b][ii]), respondent did not place the child in the BOCES. Instead, it deemed petitioner's objection to the proposed placement to be a request by petitioner for an impartial hearing. It appointed a hearing officer on January 25, 1994.
The hearing in this proceeding began on February 16, 1994. Petitioner, who was not represented by counsel or assisted by an advocate, indicated to the hearing officer that she wished to engage the services of an attorney. The hearing officer adjourned the hearing until March 1, 1994. When the hearing reconvened on March 1, 1994, the parties advised the hearing officer that they had reached an agreement to obviate the need for the hearing. The parties agreed that respondent would evaluate the child, within 45 days, and that petitioner, who was assisted by a lay advocate, reserved her right to request an independent evaluation for her son. They also agreed that the CSE would review the results of the child's evaluation, and would recommend an educational program for him. By agreement, the child remained in his special education class in the Ellenville Elementary School, and respondent agreed to provide crisis intervention services to him on an as needed basis. It was also agreed that the hearing officer would retain jurisdiction in the matter. The record reveals that the child remained in his special education class for the duration of the 1993-94 school year.
On April 15, 1994, the child was evaluated by respondent's school psychologist, who observed the child in his special education class. She reported that the child raised his hand three times for teacher assistance, within a five minute period, and that he also rustled his papers until he caught the teacher's attention. In her report, the school psychologist noted that the responses by the child's teacher to the questions asked in the Connor's Teacher Rating Scale indicated that the child's hyperactivity and conduct problems were much above average. She further reported that on projective testing, the child evidenced high levels of emotion, including feelings of aggression, anxiety, and unhappiness. He also reportedly evidenced difficulty accepting authority, and reacting to peer pressure to behave appropriately. On the Weschler Intelligence Scale for Children - III, the child achieved a verbal IQ score of 89, a performance IQ score of 99, and a full scale IQ score of 93. The school psychologist reported that the child exhibited relative weakness in the areas of vocabulary and comprehension. On the Test of Nonverbal Intelligence II, the child achieved an IQ score of 105. The school psychologist also administered the Woodcock Johnson Test of Achievement - Form B to the child. She reported that he had achieved grade equivalent scores of 3.5 in word identification, 3.7 in passage comprehension, 4.2 in mathematical calculation, and 4.5 in applied mathematical problems. The psychologist reported that the child's ability to comprehend what he was reading was impaired by his difficulty in decoding words. On the dictation subtest of the Woodcock Johnson, the child achieved a grade equivalent score of 2.4, while his score on the writing samples subtest was even lower at 1.8. The school psychologist opined that the child's relatively low grade equivalent score of 2.6 for broad knowledge might reflect the child's avoidance of reading, and his difficulty maintaining attention in school. She indicated that the child had exhibited a three-year delay in his visual integration skills, and that he evidenced weakness in his visual processing skills.
Respondent's school psychologist recommended that the child continue to be classified as a student with a learning disability, because of the significant delays in his reading decoding and written expression skills, as well as his weakness in visual processing. She also recommended that the child's educational program include the use of hands-on interactive instruction, high interest materials, and visually simple papers. She opined that the child's academic and emotional needs required a structured and supportive learning environment, and that he should continue to receive counseling. The school psychologist also opined that the placement of the child in the BOCES ALP program appeared to be appropriate for him.
The school psychologist's evaluation of the child was reviewed by the CSE, on June 10, 1994. For the 1994-95 school year, the CSE recommended that its recommendation of December 9, 1993 for the child's placement in the BOCES ALP program be re-affirmed. The child's IEP indicated that he would receive individual counseling, twice per week, and group counseling, twice per week. Notwithstanding the results of the child's achievement testing in April, 1994, the IEP which was prepared in June, 1994 indicated that his reading skills were at the second grade level. However, the new IEP did indicate that the child's mathematics skills were at the fourth grade level. The new IEP also indicated that the child required one-to-one instruction in almost all areas, and that materials should be presented to him both visually and auditorially. The child was described in his IEP as having threatened his peers physically and verbally on an almost daily basis, and being unable to wait for his turn. The IEP indicated that the child required additional adult intervention and supervision during physical education, library, music, and cafeteria time. It also indicated that an individualized behavior modification plan should be prepared for him. The IEP included annual goals for reading, language arts, and mathematics, as well as improving the child's behavior.
Petitioner did not accept the CSE's recommendation. Instead, she unilaterally enrolled her son in the Mountain Laurel Waldorf School, a private school in Tillson, New York, which is not approved by the State Education Department to provide instruction to children with disabilities. Although the private school's stated tuition charge for the 1994-95 school year was $4,800, the school treasurer testified at the hearing in this proceeding that petitioner had an oral agreement with the school to pay the sum of $1,000, plus supply and insurance fees of $165. Petitioner testified that she was expected to pay the school at the rate of $100 per month, but that she had been unable to make the monthly payments, and had only paid the sum of $265. In March, 1995, she had to withdraw the child from the Mountain Laurel Waldorf School because she could not pay his tuition.
The hearing in this proceeding reconvened on September 26, 1994. The petitioner sought reimbursement for the child's reimbursement in the Mountain Laurel Waldorf School. She also asked for an independent evaluation of her son. After discussing the issues off the record, the parties agreed on the record to have an independent evaluation of the child performed. They further agreed that the CSE would make another recommendation for the child's education program, after it had reviewed the independent evaluator's report of the evaluation.
On December 13, 1994, the child was observed by respondent's consultant special education teacher in the child's combined fourth/fifth grade class at the Mountain Laurel Waldorf School. She reported that the child appropriately socialized with the other ten children in his class, and that he took an active interest in the various instructional activities which she observed. Respondent's consultant teacher discussed the child's progress with the teacher in the private school. The boy's teacher indicated that the child had been placed in a fourth grade reading group, although he was chronologically in the fifth grade, and that he would benefit from extra help in reading.
On January 23, 1995, the child was observed by Dr. Daniel Crimmins, a psychologist employed by the Westchester County Medical Center, as part of the agreed upon independent evaluation of the child. He reported that the private school's curriculum integrated learning across units of study, and that the child appeared to "fit" in the classroom environment. Dr. Crimmins also reported that the child was reasonably attentive during group instruction, and that he followed directions with the same amount of reminding as his peers. The child reportedly told Dr. Crimmins that he would prefer to attend school in Ellenville, and asserted that he would control himself better, if given the opportunity to return to respondent's schools. The child's teacher told Dr. Crimmins that the child had made significant progress, since the beginning of the school year, and that he was demonstrating increased pride in his work and had an awareness of what he was expected to do. She indicated that the child was attentive on some days, but distractible on other days. The teacher also indicated that the child was getting along well with the other students. Dr. Crimmins, who did not formally test the child, noted that the child appeared to be functioning successfully in a regular education setting, i.e., the private school's small class without any individualized instructional support. He opined that the child's adjustment to the private school dispelled the concern that he needed to be in a more structured educational setting, such as the BOCES ALP program. While asserting that the child could succeed in a regular education environment, Dr. Crimmins opined that the child would require special education assistance in reading, writing, and maintaining his self-control. He suggested that the child receive counseling which focused upon social problem solving.
The report of the independent evaluator was apparently not received by the parties until March, 1995. On March 20, 1995, the CSE met with petitioner, her advocate, and the child's teacher from the Mountain Laurel Waldorf School. By that date, petitioner had withdrawn her son from the private school because she could not afford to pay his tuition. The CSE recommended that the child be enrolled in a regular education fifth grade class, and that he receive 60 minutes of resource room services per day. It also recommended that he receive counseling, twice per week. The IEP which the CSE prepared for the child indicated that the child needed assistance in organizing the tasks which were presented to him, and that he required adult attention to focus on tasks, and to assist in dealing with conflict. The IEP also indicated that his reading skills were still at the third grade level, but his mathematics skills were at the fifth grade level. Although the IEP described the child as able to write simple sentences, it indicated that he had difficulty remaining on topic when he wrote.
Petitioner accepted the CSE's recommendation, and the child was placed in a regular education fifth grade class. For the final quarter of the 1994-95 school year, the child received a "D" in reading. His teacher commented on his report card that:
"Your child is experiencing difficulty at this level in reading. Further work may be needed." (Exhibit 7)
The child received a "C" in English, an "A" in spelling, a "C" in mathematics, a "B" in science, and a "B" in social studies. His work and social habits were reported to be generally satisfactory, although he did not complete all of his assignments on time. He was promoted to the sixth grade for the 1995-96 school year.
The record reveals that the parties met briefly with the hearing officer on July 20, 1995, but they did not proceed with the hearing. On December 5, 1995, the hearing reconvened. The only issue before the hearing officer was petitioner's claim for tuition reimbursement for the period from September, 1994 to March, 1995. In their stipulation at the hearing in September, 1994, the parties had agreed that petitioner could assert her claim, even if she agreed with the CSE's recommendation for the child's placement during the latter portion of the 1994-95 school year.
A board of education may be required to pay for educational services obtained for a child by the child's parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations supported the parent's claim (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 US 359 ). The fact that the facility selected by the parent to provide educational 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 parent's claim for reimbursement (Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 ). The board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (Matter of a 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 93-9). In this proceeding, petitioner's advocate contended that respondent's CSE had failed to prepare an IEP for the child for implementation during the period from September, 1994 to March, 1995. Respondent's attorney asserted that the IEP which had been prepared on June 10, 1994 would have been the relevant IEP, but acknowledged that there was no evidence that respondent had approved the CSE's recommendation. The attorney indicated that respondent would not attempt to demonstrate that it had offered the child an appropriate program during the period in question. Therefore, the scope of the hearing was limited to the appropriateness of the services provided to the child by the Mountain Laurel Waldorf School, and the equitable considerations favoring petitioner's claim for tuition reimbursement.
In his decision which was rendered on May 25, 1995, the hearing officer found that the initial issue which he had been appointed to determine (the appropriateness of the CSE's recommendation for the 1993-94 school year) was moot. With regard to the appropriateness of the services which petitioner had obtained for her son at the Mountain Laurel Waldorf School in the 1994-95 school year, the hearing officer noted that the child had not been formally tested in the private school to determine the level of his academic performance, and to monitor his progress. Instead, petitioner relied upon the testimony of the child's teacher in the private school. The teacher had opined that the child had made academic progress while in her class. However, the hearing officer found that petitioner had failed to demonstrate how the Mountain Laurel Waldorf School had addressed the child's reading deficits, or how it had individualized its regular education curriculum to meet the child's needs. He therefore found that petitioner had failed to meet her burden of proof with respect to the second Burlington criterion for tuition reimbursement, i.e., whether the services which petitioner had obtained for her child were appropriate. With regard to the third Burlington criterion, i.e., whether equitable considerations supported petitioner's claim, the hearing officer found that petitioner had cooperated at all times with the CSE.
Petitioner has submitted a copy of the child's IEP for the 1995-96 school year, with her petition. She asks that I include the IEP in the record, notwithstanding the fact that the hearing officer declined to admit the IEP into evidence at the hearing, where it was identified as Exhibit 6. Petitioner contends that the IEP is relevant because it demonstrates that the child was successful at the fifth grade level in a regular education setting during the last quarter of the 1994-95 school year, since the CSE recommended that he be placed in a regular education sixth grade class for the 1995-96 school year. Respondent contends that the hearing officer excluded the IEP from the record for legally appropriate reasons. I will include the document in the record because it is evidence of the CSE's perception of the child's abilities and needs within a few months after he had returned to respondent's school from the Mountain Laurel Waldorf School.
Petitioner asserts that the hearing officer erred in his decision, by indicating that the child was in the fifth grade, and that the child's word recognition and reading comprehension skills were at the third grade level. Petitioner contends, and I find, that when the hearing officer rendered his decision in May, 1996, the child was in the sixth grade. The child's reading skills were last formally tested in April, 1994. At that time, his word recognition and reading comprehension skills were reported by respondent's school psychologist to be at a mid-third grade level. As noted above, the child's reading skills were not tested at the Mountain Laurel Waldorf School, nor were they tested upon his return to respondent's school in March, 1995. Although the IEP which was prepared in March, 1995 indicated that the child's reading skills were at the third grade level, the CSE chairperson and the child's resource room teacher were unable to explain the basis for the IEP's description of the child's reading skills. At the hearing the child's teacher in the Mountain Laurel Waldorf School opined that the child's reading skills were at, or slightly below, the fourth grade level in September, 1995, and that the child was a strong fourth grade reader when he left her class in March, 1995. I note that the child's teacher was certified by the State Education Department to teach reading, and had previously been employed as a teacher by respondent.
Petitioner also relies upon the fact that the child was instructed in reading in a regular education fifth grade class upon his return to respondent's school in the Spring of 1995. However, it does not follow that he was successfully reading at the fifth grade level. Indeed, his teacher's comment on the child's report card indicated that the child was having difficulty reading at that level. Ms. Carla Eggleston, the child's resource room teacher for the last quarter of the 1994-95 school year, testified that all children in respondent's fifth grade program read the same books, even though their reading levels differed. She further testified that she had worked extensively with the boy on his reading, and that with her help, he had been able to stay in the fifth grade class.
The level of the child's reading skills as of March, 1995 is of significance because one of his special education needs was to improve his ability to read. In the absence of any evidence to the contrary, I credit the testimony of his private school teacher that the child's reading skills had improved from early fourth grade, or below, to a "strong" fourth grade, while the child attended the private school.
In order to meet her burden of proof that the services which she obtained for the child at the Mountain Laurel Waldorf School were "proper under the act" [Individuals with Disabilities Education Act] (School Committee of the Town of Burlington v. Department of Education, Massachusetts, supra 370), petitioner must show 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). As identified in his psychological evaluation in April, 1994, the child's special education needs centered upon the significant delays in his reading decoding, written expression, and visual processing skills, as well as his difficulty in successfully maintaining interpersonal relationships and his limited ability to tolerate frustration. The IEP which the CSE prepared on June 10, 1994, indicated that the child had difficulty paying attention during group instruction, and that he needed to have information presented in both the visual and auditory modes. The IEP annual goals addressed the delays in the child's reading and writing skills, as well as his need to acquire more appropriate social skills. In her testimony, the child's teacher agreed that the child's reading and writing skills were deficient when he entered her class. She also agreed that the child had difficulty interacting with his peers, and she asserted that his organizational skills were markedly deficient.
The child's teacher in the Laurel Mountain Waldorf School prepared a written description of the curriculum which she presented to her class during the 1994-95 school year (Exhibit 13). That document indicates the students' reading vocabularies were enhanced, and that their reading comprehension skills were developed. The teacher testified that there were five children in the boy's fourth grade reading group. Although she also testified that she had modified the curriculum for each of her students, the teacher did not explain what modifications she had made for petitioner's son. The teacher described the child's writing as being very sloppy when he began in her class. She testified that the child's written expression had improved, and opined that her insistence upon organization and discipline had contributed to the improvement in the boy's writing skills. In her written curriculum description, the teacher revealed that she worked on grammar and sentence writing by having her students listen to stories, discuss the stories, and then create a "book" about them. A multi-sensory approach was also used to teach mathematics to her students.
In June, 1994, the CSE had determined that the child's academic and emotional needs were so severe that they could no longer be addressed in respondent's own special education class, and that he should attend the BOCES. The child's teacher in the private school testified that the child did have emotional problems which impaired his ability to interact successfully with his peers, and affected his attitude towards school. She asserted that she had spent a disproportionate amount of her time working with the child to improve his organizational skills, to get him to recognize and accept her expectations for him, and to improve his ability to get along with his peers. She testified that she had been successful in her efforts to change his behavior for the better with regard to his interaction with others and his attitude about school. I note that Ms. Eggleston's observation report appears to confirm the teacher's testimony. I further note that Ms. Eggleston testified that the child did not evidence any significant behavioral problem upon his return to respondent's schools. In view of the foregoing, I find that petitioner did meet her burden of proof with respect to the appropriateness of the services which she obtained for her son in the private school.
I concur with the hearing officer's determination that petitioner cooperated at all times with the CSE. I also find that equitable considerations support petitioner's claim for tuition reimbursement. Petitioner asks that she be awarded the sum of $1,160, which would include the $265 which she has paid to the private school, and the $895 which she allegedly owes the school. I agree with the hearing officer's finding that the latter sum is not an enforceable obligation. Indeed, the private school's treasurer testified that the private school was not pursuing that claim against petitioner. Therefore, respondent has no obligation to "reimburse" petitioner for that sum (Applications of a Child with a Disability and the Board of Education of the Morrisville-Eaton Central School District, Appeal Nos. 96-21 and 96-23).
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that the decision of the hearing officer is hereby annulled, and;
IT IS FURTHER ORDERED that respondent shall reimburse petitioner in the amount of $265 upon her presentation of proof to respondent of such expenditure.
|Dated:||Albany, New York||__________________________|
|October 11, 1996||ROBERT G. BENTLEY|