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 Brewster Central School District
Rosa Lee Charpentier, Esq., attorney for petitioner
Anderson, Banks, Curran and Donoghue, Esqs., attorneys for respondent, James P. Drohan, Esq., of counsel
Petitioner appeals from the decision of an impartial hearing officer which denied petitioner's request for an order directing respondent to reimburse petitioner for the cost of his son's tuition at the private school in which petitioner unilaterally enrolled the boy for the 1995-96 school year. The appeal must be dismissed.
Petitioner's son is fifteen years old. In June, 1985, the boy was evaluated at the Robert Wood Johnson Rehabilitation Institute in Edison, New Jersey, where petitioner and his family resided. Petitioner's son, who was approximately four and one-half years old at the time, reportedly exhibited moderately delayed perceptual motor and graphomotor skills. His receptive language skills were reported to be at the age equivalent level of 3.1, while his expressive language skills were described as delayed. The Institute recommended that the child continue to receive speech therapy, physical therapy, and occupational therapy, while attending a preschool program for children with disabilities during the 1985-86 school year. In July, 1986, a neurologist at the Johnson Institute opined that the child exhibited signs of a minimal cerebral dysfunction, as manifested by an attention deficit disorder, communication disorder, auditory-perceptual impairment, short-term memory deficit, difficulty with speech modulation, and inappropriate behavior.
The child became eligible to attend kindergarten in the Public Schools of Edison Township (New Jersey) in September, 1986. A school psychologist who had evaluated the child in June, 1986, reported that the child had achieved a verbal IQ score of 70, a performance IQ score of 58, and a full scale IQ score of 61. The psychologist noted that the child had been receiving speech/language services as a preschooler, and he recommended that the child receive a specialized educational program which focused upon developing his expressive and receptive language skills, as well as his fine motor and visual motor coordination skills. The boy was reportedly classified as neurologically impaired, and was placed out of district in the private High Road School, where he remained for approximately five years.
In an August, 1989 triennial re-evaluation of the child, an educational evaluator reported that the child was academically functioning at a high kindergarten level in all areas, except his visual motor skills, which were described as being at just below the kindergarten level. Petitioner's son was also evaluated by a psychologist, who reported that the child had achieved a verbal IQ score of 72, a performance IQ score of 48, and a full scale IQ score of 51. On a second IQ test, the child achieved a score of 66. The psychologist reported that the boy's IQ scores were within the mildly retarded range, and that the boy evidenced a significant visual motor problem. He indicated that the child had been classified as neurologically impaired, and opined that the child's impairment would substantially interfere with his general academic development.
The boy was reportedly placed by the Edison School District in the Woodcliff Academy School, a private school for neurologically impaired children, for the 1991-92 school year. In April, 1992, the child was placed on a specialized diet to help alleviate his allergic reactions to foods. His behavior reportedly improved as a result of his new diet. The child remained in the Woodcliff Academy through the 1992-93 school year. His individualized education program (IEP) for that school year indicated that the boy's classification had been changed to "communication handicapped", and that he was to receive special education instruction in all subjects. In addition, he was to receive speech/language therapy twice per week, and counseling once per week.
In anticipation of a family move to the Pittsburgh, Pennsylvania area, the child was evaluated at his parent's expense by a psychologist in Pittsburgh in July, 1993. The child achieved a verbal IQ score of 58, a performance IQ score of 58, and a full scale IQ score of 54, on the Wechsler Intelligence Scale for Children-Third Edition. On the Stanford-Binet Intelligence Scale-Fourth Edition, which the psychologist also administered to him, the child achieved a composite score of 60, which was equivalent to an IQ score of 60. On the Peabody Picture Vocabulary Test-Revised, which measures receptive language ability, the child achieved a standard score of 81, which was in the low average range. The psychologist reported that the boy's receptive language skills were much stronger than his expressive language skills. On the Kaufman Test of Education Achievement, petitioner's son achieved standard scores of 57 in reading decoding, 60 in reading comprehension, 58 in spelling, 60 in mathematical computation, and 60 in mathematical applications. With the exception of his score for mathematical applications which was reported as being at the second grade level, each of this twelve year old boy's other academic skills were found to be on a first grade level. On the Developmental Test of Visual Motor Integration, the child achieved an age equivalent score of six years and three months, or a delay of slightly more than six years. The psychologist reported that the child's score of 67 on this test was in the "expected range", given the scores which he had achieved on his intellectual assessment. The psychologist recommended that the child be placed in a small classroom setting where his instructional program could be individualized to meet his unique needs. She noted that the boy's social skills were much higher than expected, and she opined that he would benefit from contact with his non-disabled peers.
Petitioner and his family moved to Pennsylvania, where they were located within the Peters Township. However, petitioner did not enroll his son in the public schools of Peters Township. At the hearing in this proceeding, petitioner testified that he and his wife wanted their son to have a religious foundation in his life, so they enrolled the boy in the St. Anthony School for Exceptional Children, which was reportedly located within the St. Thomas More School of the Roman Catholic Diocese of Pittsburgh. Although there is virtually no information in the record before me with regard to the child's education during the 1993-94 school year. I note that the IEP which the St. Anthony School prepared for the 1994-95 school year indicated that the child had been in an "inclusive" sixth grade program during the 1993-94 school year. The IEP revealed that the child had apparently been educated in some subjects with his chronological peers in the sixth grade, but had received instructional support and curriculum modifications in that inclusive setting.
The child remained in the St. Anthony School for the seventh grade, during the 1994-95 school year. His IEP indicated that he was to be instructed in "functional reading and mathematics", and that the remainder of his instruction was to be provided in an inclusive setting. The IEP included annual goals for his inclusive social studies, science and creative writing instruction. I note that the child's seventh grade report card indicated that the child's creative writing instruction was provided by a resource room teacher, and that the child received satisfactory grades in each subject of instruction in the seventh grade.
Petitioner testified that in May or June, 1995, he and his wife decided that they would relocate back to the New York area. Petitioner addressed a letter, dated July 27, 1995, to the chairperson of respondent's committee on special education (CSE). In his letter, petitioner indicated that he and his family were relocating to the Southeast Township, and that his son would be enrolled in respondent's schools. He described his son as a child with a severe learning disability who required a specialized educational program, and asked that the CSE develop an IEP for the child to be in place by September, 1995. Petitioner indicated that his son did not do well on standardized tests, and that his son's allergies contributed to the boy's depressed scores on such tests. He also indicated that he had enclosed evaluation reports from the child's teachers, his child's most recent report card, and a copy of the July, 1993 private psychological evaluation. Petitioner also indicated that he had enclosed a separate letter authorizing respondent to obtain his son's prior school records from the St. Anthony School for Exceptional Children. However, that school reportedly declined to release to respondent the records which it had obtained from the Edison Public Schools in New Jersey.
On August 2, 1995, petitioner had a telephone conversation with respondent's Director of Special Education Services, Ms. Kathleen Evans. Ms. Evans testified that she had advised petitioner and his wife that in accordance with respondent's policy of requiring the re-evaluation of new students who had been evaluated more than one year before coming to the district, their son would have to be evaluated. Later that day, Ms. Evans sent a letter to petitioner at his home in McMurray, Pennsylvania, in which she advised petitioner that she had tentatively scheduled psychological and educational evaluations and the preparation of the child's social history to be done during the week of August 21. At the hearing, Ms. Evans testified that she had selected that date because the child's mother had indicated to her that she and the child would be in the school district at that time. With her letter of August 2, 1995, Ms. Evans also included a consent to evaluate form (see 8 NYCRR 200.5 [h]). Although petitioner indicated on the consent form that he had signed the form on August 2, 1995, that seems to be highly unlikely in view of the fact that the form was mailed to his home in Pennsylvania on that date. On August 12, 1995, petitioner signed a written authorization for the child's physician to provide Ms. Evans with information about the results of the child's recent physical examination.
On August 12, 1995, petitioner informed Ms. Evans that the child would not be available to be evaluated during the week of August 21, 1995. He also requested that an informal conference be scheduled to discuss his son's evaluations. Ms. Evans reportedly advised the child's parents that they would have to establish residence in the Brewster Central School District before the CSE would prepare an IEP for the child. In a letter to Ms. Evans, which was dated August 16, 1995, the child's mother indicated that petitioner was currently searching for an apartment in the school district. The record which is before me includes an apartment lease which was dated September 6, 1995.
On September 8, 1995, petitioner met with a guidance counselor in respondent's Henry Wells Middle School to discuss the educational programs which might be available to his son. Petitioner signed a form authorizing the Edison Public School to release information about the child to respondent's CSE, during his meeting with the guidance counselor. The guidance counselor asked petitioner if he would agree to have respondent temporarily implement the IEP which had been used by the St. Anthony School for Exceptional Children during the 1994-95 school year, until a new IEP was prepared for the boy. Petitioner did not agree to that request. In a letter dated September 11, 1995, petitioner asserted to the CSE chairperson that respondent did not have an appropriate educational program for his son, and informed her that he had unilaterally enrolled his son in the Maplebrook School in Amenia, New York. He indicated that he had retained an attorney, and that he would be seeking tuition reimbursement from respondent.
Ms. Evans wrote to the boy's parents on September 20, 1995 to indicate that the CSE still needed to update the child's psychological and educational evaluations and his social history. She offered the parents an opportunity to have a pre-evaluation conference, and suggested that the parents authorize the Maplebrook School to release information about the child to respondent's CSE, as an alternative to some of the proposed testing by the CSE. She also asked the parents to consent to having the child observed in his private school classroom by a CSE representative. Ms. Evans also offered the child's parents an opportunity to meet with the CSE on various dates in October, 1995, and reportedly provided them with information about their due process rights. In a separate letter to the parents, which was dated September 29, 1995, Ms. Evans informed them that a meeting of the CSE had been scheduled for October 18, 1995.
Petitioner, who had reportedly declined to be interviewed in person by a school social worker for information to be included in the child's social history, did speak on the telephone with the social worker on October 13, 1995. On the preceding day, respondent's educational evaluator traveled to the Maplebrook School to conduct an educational evaluation of the child. However, the evaluation was not performed because petitioner asked the child whether he wished to be evaluated, and the child said that he did not want to be tested. Petitioner reportedly told respondent's educational evaluator that she could observe the child in his classroom, but that she could not have any further contact with his son. At the hearing in this proceeding, respondent's school psychologist testified that he too had attempted to evaluate petitioner's son in the Maplebrook School on October 13, 1995, but had been unable to do so for similar reasons.
On October 17, 1995, the CSE met with petitioner to prepare an "interim" IEP for implementation during a 30-day period in which the child's evaluations were to be completed. The IEP indicated that the child was to be classified as multiply disabled, and that he would be placed in a 15:1 special education class for all instruction, except "special subjects" e.g., art, music, and physical education. The CSE indicated on the child's IEP that it could not determine what related services should be provided to the child at that time.
The appointments which Ms. Evans had made for the child's psychological, educational, and speech/language evaluations to be conducted at respondent's middle school during the month of November, 1995 were reportedly not kept by petitioner or his son. When the hearing in this proceeding convened on January 24, 1996, the parties, at the urging of the hearing officer, agreed to a schedule for the child's evaluations. On January 27, 1996, the child was evaluated by respondent's school psychologist, who reported that the child achieved a verbal IQ score of 65, a performance IQ score of 70, and a full scale IQ of 65. He noted that the child showed a slight improvement in his long-term memory, over the results of previous IQ tests. However, his short-term auditory memory continued to be weak. On tests requiring visual-motor coordination and perceptual organization, the child showed a significant improvement in his visual memory and alertness to detail. The psychologist opined that the child's fund of knowledge, abstract reasoning ability, and social judgment indicated a potential for growth.
Respondent's educational evaluator also tested the child on January 27, 1996. On the Kaufman Functional Academic Skills Test, the child achieved standard scores of 67 in reading, and 64 in arithmetic. He achieved standard scores of 46 (grade equivalent of 1.7) in broad reading, 49 (grade equivalent of 2.0) in broad mathematics, and 42 (grade equivalent of 1.4) in broad written language on the Woodcock-Johnson Psychoeducational Battery - Revised. His broad knowledge was reported to be at the third grade level. The evaluator described the child's spelling of common non-phonetic words as sporadic. She indicated that basic processing appeared to be a problem for the child, and she opined that he might have difficulty with oral instruction, and abstract, visual representation of new information. The evaluator recommended that the child be instructed in a special education milieu with age peers, and that goals for his daily living skills be included on his IEP.
On January 30, 1996, the child's speech/language skills were evaluated. He achieved standard scores of 50 in both receptive and expressive language on the Clinical Evaluation of Language Fundamentals - Revised. He achieved similar results on the Test of Adolescent Language - Revised. The evaluator reported that the child was able to speak in short, complete sentences, but that he had difficulty expressing himself in complex sentences. She recommended that the child receive speech/language therapy in a group twice per week.
On February 16, 1996, the CSE recommended that the child be classified as multiply disabled. It further recommended that he be placed in a 15:1 special education class in the Wells Middle School for instruction in academic subjects. The IEP which the CSE prepared for the child indicated that he would participate in regular education for home and career skills, physical education, technology, art/music, and computer science. The CSE also recommended that the child receive speech/language therapy in a group twice per week. Various testing modifications were recommended for the child, including extended time limits, recording of answers, and having test questions read to him. Annual goals for reading, language arts, English, mathematics, social studies, science, and activities for daily living skills were included in the child's IEP. The IEP also included goals for his speech/language therapy, and transition services (see 8 NYCRR 200.1 [rr]).
The hearing resumed on February 26, 1996, and concluded on May 1, 1996. At the hearing, petitioner asserted that the IEP which had been developed for his son in 1992 by the Edison Public Schools was the last IEP which had been prepared in accordance with the Individuals with Disabilities Educational Act (20 USC 1400). He contended that respondent had violated Federal and State law by not implementing that IEP during the pendency of this proceeding. Petitioner also contended that the IEP which respondent's CSE had prepared for his son was inadequate.
On June 25, 1996, the hearing officer rendered his decision. He rejected petitioner's contention that respondent had violated the pendency provisions of Federal and State law by not implementing the IEP from the Edison Public Schools. The hearing officer found that the IEP which respondent's CSE had prepared on February 21, 1996 addressed the child's educational needs. While that finding would be dispositive of petitioner's claim for tuition reimbursement, the hearing officer further found that petitioner had not met his burden of proof with regard to the appropriateness of the Maplebrook School because it was not the least restrictive environment for the child. He denied petitioner's request for an order requiring respondent to reimburse him for the cost of his son's tuition in the Maplebrook School.
Petitioner argues that the hearing officer erred by finding that respondent was not required to implement the Edison IEP during the pendency of this proceeding. He contends that since his son had been previously identified in New Jersey as a child with a disability, respondent was required to follow certain procedures before it could "change" the child's placement. At the outset, I note that although petitioner argues that respondent should have placed the child in a private school for children with disabilities, he has not suggested that respondent was required to place the child in the Woodcliff Academy, the school which the boy attended pursuant to the Edison IEP.
The initial question is what obligation did respondent have to provide a placement to the child at the beginning of the 1995-96 school year, or at least as of the date when he became a resident of the Brewster Central School District. I must note that Federal and State statutes require school districts to provide appropriate special educational services to the children with disabilities who reside within the districts (20 USC 1414 [a][A]; Sections 3302, 4401  and 4402 [a] of the Education Law). There is nothing in the record before me to establish that petitioner and his son became residents of the Brewster Central School District prior to September 6, 1995.
In 1989, the United States Education Department's Office of Special Education Programs opined that if a child with a disability moves from one school district to another district within the same state, and the child's parents and the new school district are unable to agree upon an interim placement for the child, the new district must implement the child's old IEP "to the extent possible" until a new IEP is developed and implemented (EHLR 213:265). However, that Office also indicated that it had no policy with regard to children who move into a school district from a different state (EHLR 213:267). More recently, the Office of Special Education Programs opined in 1995 that a school district which receives a transfer student from another state is not required to adopt the child's most recent evaluations, or to implement the child's most recent IEP from the school district in which the child previously resided (OSEP Memorandum 96-5, 24 IDELR 320). It noted that the standards of the two states might not be consistent with each other. The child's new district of residence must determine if the child has a disability, and if the child's evaluations and IEP from the other state meet the education standards of the new state of residence. If so, the district may elect to implement the child's most recent IEP from his or her former school district, without conducting a CSE meeting. If the child's new school district of residence elects not to adopt the child's previous evaluations, it must evaluate the child without undue delay and provide proper notice to the child's parents, who must consent to the evaluation before it can be performed. A CSE meeting must be convened no later than 30 calendar days after the child has been found to need special education services (34 CFR 300.343 [c]). If the child's parents wish to challenge the CSE's recommendations for the child, and the parents and the school district cannot agree on a placement during the pendency of the proceeding, the school district is not required to implement the child's prior IEP, or to approximate the services contained in the former school district's IEP during the pendency of authorized review proceedings. Instead, the Office of Special Education Programs opined that the school district may place the child in its regular education program. Under the circumstances presented in this proceeding, I find that petitioner's contention that respondent was required to implement the Edison IEP is without merit.
Petitioner challenges the educational placement which respondent's CSE recommended for his child, on the grounds that the child's IEP was allegedly not developed in accordance with the applicable Federal procedural safeguards, that the CSE allegedly failed to address his son's academic, management, social and physical needs, and that the CSE improperly applied the requirement that children be educated in the least restrictive environment when it recommended that the boy be educated in the middle school. The procedural irregularity with which petitioner charges the CSE is that it allegedly did not meet before it placed the child in a special education program. Petitioner relies upon the interpretation of the Federal regulatory requirements which is set forth in 34 CFR Part 300, Appendix C, Question 6. That interpretation indicates that when a child moves from one school district to another, the CSE of the second district must meet with the parent, if the CSE or the parent believes that the child's IEP from the first school district is inappropriate. However, the second district may temporarily place the child in an interim program before the child's IEP in the second district is finalized. In this instance, petitioner's son was offered an interim placement in September, 1995. In addition, the CSE met with petitioner, and prepared IEPs for the child, in October, 1995 and February, 1996. Therefore, I find that petitioner's contention is without merit.
Although not specifically questioned by petitioner, I have considered the timeliness of the CSE's offer of a placement. I note that respondent's initial attempt to evaluate the child in the Maplebrook School did not occur until one month after petitioner had demonstrated that he was a resident of the district. However, petitioner bears the responsibility for the subsequent delay in evaluating the child. He acknowledged at the hearing that he had precluded respondent's educational evaluator and school psychologist from evaluating the child because his son did not want to be tested. I note that the educational evaluator and the school psychologist testified that they had no difficulty testing the child when they were finally allowed to do so.
Petitioner argues that the educational program which respondent offered to his son was inappropriate because the IEP which respondent's CSE prepared was flawed. An appropriate program begins with an IEP which accurately reflects the results of a child's 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). I have reviewed the IEP, which was prepared on February 16, 1996 (Exhibit 26), and I find that it accurately reflects the results of the child's evaluations. Petitioner argues that the IEP did not adequately identify his son's present levels of educational performance, as required by Federal and State regulations (34 CFR 300.346 [a[; 8 NYCRR 200.4[c][i]). However, I find that the boy's present levels of performance were adequately described on the second and third pages of his IEP.
Petitioner further argues that his son's IEP lacked measurable criteria for determining the child's progress during the 1995-96 school year, and that it did not set forth projected dates of mastery for his IEP goals. An IEP must include appropriate objective criteria and evaluation procedures and schedules for determining, on at least an annual basis, whether the child's instructional objectives are being met (34 CFR 300.346[a]; 8 NYCRR 200.4 [c][iii]). I find that the boy's IEP did include appropriate objective criteria for ascertaining whether he was achieving his instructional objectives, but that it failed to indicate projected mastery dates for those objectives. Nevertheless, that omission does not, in my opinion, afford a basis for finding that the educational program which respondent offered to the child was inappropriate.
Petitioner challenges the adequacy of his son's IEP annual goals, because they allegedly did not correspond to the boy's present levels of educational performance. The child's annual goals were phrased in general terms, e.g., the child "...will develop and demonstrate an improvement in reading decoding and word recognition skills." Nevertheless, the corresponding short-term instructional objectives were far more specific than the goals. The objectives provided the child's teachers with adequate direction about the CSE's expectations, and they afforded a basis for developing a detailed instructional plan for the child (see Application of a Child Suspected of Having a Disability, Appeal No. 94-8). Although neither the goals nor the objectives referred to specific grade levels, the objectives did relate to the areas of need which were identified in the child's evaluations. Petitioner asserts that the IEP failed to address the development of the child's adaptive skills. However, I find that the goals and objectives which were set forth in the activities of daily living skills and transitional activities addressed the child's adaptive skills.
Having found that the child's IEP adequately identified his special education needs, and that it included annual goals and short-term instructional objectives which were related to those needs, I will now consider whether the CSE recommended that appropriate special education services be used to address those needs. I find that the child's academic and communication skills were significantly delayed, and that he required special education for primary instruction in the academic subjects, e.g., reading, writing, mathematics, social studies, and science as well as speech/language therapy. The educational program which the CSE recommended for the child included those services.
The CSE also recommended that the child be enrolled in regular education classes with his peers for special subjects such as art, music, technology, home and careers, and physical education. At the hearing, petitioner expressed concern about his child's ability to function successfully in regular education classes. The Headmaster of the Maplebrook School opined in his testimony that the child might have a "fair amount of stress" in a mainstream setting, because of deficits in his social skills. However, I note that the child's social skills were reported to be an area of relative strength for the child, and that he apparently functioned successfully in inclusion classes at the St. Anthony School during the two school years prior to the 1995-96 school year. Respondent was required to educate petitioner's son in the least restrictive environment for the child (37 CFR 300.550[b]; 8 NYCRR 200.6 [a]. I am not persuaded by the information which is in the record before me that the child could not benefit from any instruction in a regular education setting, such as respondents' Henry Wells Middle School, or that he therefore needed to be placed in a private school for children with disabilities, as petitioner contends.
Petitioner also asserted at the hearing that his son needed to be placed in a small private school because of his allergies. The child's IEP indicated that the child's allergies impacted upon his memory, mood, and fatigue level. In a letter dated March 25, 1996, the child's physician indicated that the boy suffered from "severe IgE mediated allergy as well as chemical and environmental sensitivity." He opined that the child would "do better" in a small, controlled environment. I note that in a letter dated March 15, 1996, the Dean of Students at the Maplebrook School indicated that the child's special allergy needs had been easily compensated for in the school's program. However, she did not identify how that had been done. The Headmaster of the Maplebrook School testified that the child's food consumption was closely monitored, and that he had spoken to the school's staff about the child's alleged allergies to pesticides and perfumes. He did not otherwise describe how the school had successfully addressed the issue of the child's allergies. Absent more specific information about the child's allergies, I am unable to conclude that the child's placement in respondent's middle school would have been inappropriate (Application of a Child with a Handicapping Condition, Appeal No. 93-27).
Upon the record before me, I find that respondent has met its burden of proving that it offered the child an appropriate educational program for the 1995-96 school year. It has shown that the recommended program was reasonably calculated to allow the child to receive educational benefits (Bd. of Ed. Hendrick Hudson CSE v. Rowley, 458 U.S. 176), in the least restrictive environment. A board of education may be required to pay for educational services obtained for a child by the child's parents if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 ). Since respondent has met its burden of proof with respect to the appropriateness of the special education services which it offered to the child, I find that petitioner is not entitled to the relief which he seeks, i.e., an order requiring respondent to pay for the child's private school tuition.
THE APPEAL IS DISMISSED.
|Dated:||Albany, New York||__________________________|
|December 30, 1996||ANN R. ELDRIDGE|