The State Education Department
State Review Officer

No. 97-28




Application of a CHILD WITH A DISABILITY, by his parent, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the City School District of the City of New York.

Neal H. Rosenberg, Esq., attorney for petitioner

Hon. Paul A. Crotty, Corporation Counsel, attorney for respondent, Steven A. Friedman, 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 the cost of her son's tuition in a private school in which petitioner had unilaterally placed him for the 1996-97 school year. The hearing officer denied petitioner's request for reimbursement on the ground that the private school was not the least restrictive environment in which the boy could have been educated. The appeal must be sustained.

        Petitioner’s son, who is fifteen years old, was initially classified as learning disabled, while he was enrolled in the first grade in respondent’s P.S. 81. He was held over in the first grade, and received resource room services through the remainder of elementary school, and in the seventh grade at respondent’s J.H.S. 104. The boy reportedly had difficulty maintaining his attention and had poor organization skills, while in elementary school. Although there is virtually no information about his academic performance in elementary school in the record before me, there is a copy of his seventh grade report card, which indicated that he was failing language arts and Spanish, and received barely passing grades in his other academic subjects in the spring of 1995. His teachers commented that the boy had not completed many of his homework assignments.

        Petitioner unilaterally enrolled her son in the Winston Preparatory School for the 1995-96 school year. The Winston Preparatory School is a non-public school for learning disabled adolescents in grades 7-12. It has not been approved by the State Education Department to provide instruction to children with disabilities. The record does not reveal what educational program the CSE had recommended for the boy during the 1995-96 school year, nor does it disclose what progress he made in the private school during that school year. In March, 1996, petitioner enrolled her son in the Winston Preparatory School for the 1996-97 school year.

        On or about March 22, 1996, the boy was referred to the committee on special education (CSE) of Community School District No. 3 by the Winston Preparatory School. The private school is located within that community school district, although the child reportedly resided in another community school district. In a social history which was obtained from her on April 10, 1996, petitioner allegedly informed the school social worker that she had requested that her son be referred to the CSE for the purpose of obtaining tuition reimbursement for the 1995-96 and 1996-97 school years. In any event, I note that at the hearing in this proceeding, petitioner limited her tuition reimbursement claim to the 1996-97 school year.

        In a psychological evaluation which was performed on April 10, 1996, petitioner’s son achieved a verbal IQ score of 85, performance IQ score of 77, and a full-scale IQ score of 79. The school psychologist who evaluated the child reported that the boy’s intra-test score scatter indicated that he had higher potential than the testing had revealed. She attributed his test score scatter to emotional preoccupation which intruded upon his ability to remain focused. Although his score in performing the graphomotor task of number/symbol substitution was in the intellectually deficient range, the boy achieved the highest possible score in a test of his visual motor integration skills. His visual recall of designs was reported to be inadequate. Emotionally, he was reported to feel victimized by peer aggression, which had lowered his self-esteem. The school psychologist suggested that the boy would probably engage in passive resistance, as a coping mechanism, and she recommended that the boy receive counseling.

        An educational evaluation was also performed on April 10, 1996. The child received standard age scores which ranged from 78 for picture vocabulary to 101 for listening comprehension, on the Woodcock Johnson Psycho-Educational Battery. He achieved grade equivalent scores of 14.6 for letter-word identification, 10.9 for passage comprehension, 5.8 for mathematical calculation, 9.5 for mathematical application, 11.7 for writing samples, and 6.8 for social studies. At the time of his evaluation, petitioner’s son was nearing the end of the eighth grade. With regard to the boy’s low performance in mathematical calculation, the evaluator reported that the boy made a number of errors in regrouping and place value, while subtracting and multiplying. His division skills were described as being only at the beginning level. He was found to have trouble retrieving words during the picture vocabulary test. Overall, the boy’s broad reading skills were reported to be in the high average range, his broad mathematics skills and social studies skills were within the low average, and his writing and science skills were found to be in the average range. However, the boy’s oral language skills ranged from borderline to average.

        The CSE invited petitioner and her son’s private school teacher to attend a meeting which was to be held on July 19, 1996. Petitioner requested that the CSE meeting not take place until October, 1996, so that she could obtain assistance from an attorney. The CSE denied her request. On July 19, 1996, the CSE met without either petitioner, or the boy’s teacher from the Winston Preparatory School. It recommended that the boy be classified as learning disabled, and that he remain in a regular education program, but receive one period of resource room service per day. The CSE also recommended that the boy receive counseling in a group of no more than five children once per week, and that time limits be waived and separate locations be used for the boy’s tests. The individualized education program (IEP) which the CSE prepared for the boy included annual goals for English and mathematics, as well as counseling. On or about August 6, 1996, respondent offered the boy a placement for the 1996-97 school year in its Martin Luther King High School.

        Petitioner re-enrolled her son in the Winston Preparatory School. On September 11, 1996, she requested that an impartial hearing be held to review the CSE’s recommendation. The hearing in this proceeding was held on February 11, 1997. At the hearing, there was no dispute regarding the appropriateness of the boy’s classification, although petitioner argued that the CSE had failed to observe the child in his classroom at the Winston Preparatory School, as part of its evaluation of the boy. She also challenged whether the CSE had adequate information about her son’s past performance while receiving resource room services.

        In a decision dated March 10, 1997, the impartial hearing officer determined that respondent had failed to properly evaluate the boy because it did not observe him in his current educational setting. In view of that finding, she held that the individualized education program (IEP) which had been developed by the CSE at its meeting on July 19, 1996 was null and void. The hearing officer further found that the child's disabilities were not sufficiently severe to warrant his placement in a full-time special education class. Accordingly, she denied petitioner’s request for tuition reimbursement on the ground that the boy’s placement in the Winston Preparatory School was inconsistent with the Federal and State requirement that children with disabilities be educated 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 [1985]). The fact that the facility selected by the parents to provide special education services to the child is not approved as a school for children with disabilities by the State Education Department (as is the case here) is not dispositive of the parents' claim for tuition reimbursement (Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7[1993]). The board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (Matter of Handicapped Child, 22 Ed. Dept. Rep. 487; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Child with a Disability, Appeal No. 93-9). To meet its burden, the board of education must show that the recommended program is reasonably calculated to allow the child to receive educational benefits (Bd. of Ed. Hendrick Hudson CSD v. Rowley, 458 U.S. 176 [1982]), and that the recommended program is the least restrictive environment for the child (34 CFR 300.550 [b]; 8 NYCRR 200.6 [a][1]).

        Respondent has not appealed from the hearing officer’s determination that it had failed to meet its burden of proof with respect to the first of the three criteria for an award of tuition reimbursement, i.e., whether it had offered appropriate and adequate special education services to petitioner’s son. Consequently, I do not review that determination.

        With respect to the second criteria for an award of tuition reimbursement, petitioner bears the burden of proof with regard to the appropriateness of the services which she obtained for her son at the Winston Preparatory School during the 1996-97 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 central issue in this appeal is whether the child’s placement in a school which apparently serves only learning disabled children is consistent with the requirement that children with disabilities be educated in the least restrictive environment. Although respondent did not place the child in the Winston Preparatory School, petitioner’s claim for tuition reimbursement is premised upon the provisions of the Individuals with Disabilities Education Act (20 USC 1400 et seq.) which requires that children with disabilities be educated in the least restrictive environment (see P.J. v. State of Connecticut, 788 F. Supp. 673 [D. Conn., 1972]; Application of a Child with a Disability, 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, 887 F. 2d 688 [2d Cir., 1989]).

        Both parties agree that the boy requires special education instruction. Respondent argues that the boy’s special education needs can be met, and have been met in the past, with supplementary instruction provided in a resource room program (see 8 NYCRR 200.1 [hh]). Petitioner contends that her son struggled, and was not academically successful, while receiving resource room services from respondent in the past. She asserted that she and a private tutor had worked diligently with the boy to enable him to progress academically.

        At the impartial hearing held in this matter, the child's English teacher testified with respect to the educational program provided at Winston Preparatory School. The teacher indicated that there were approximately 58 learning disabled students who attended classes which did not exceed 11, and in which specialized instruction was provided by special education teachers. She testified that the child required instruction in a small classroom setting, and that he needed to have information highlighted and outlined in order to process the material. The teacher also testified that the child had poor graphomotor skills, and that he required a multi-sensory approach to learning, as well as extended time to take examinations. She offered the opinion that the child would be lost in a regular education class, and that he would be unable to follow instructions of the teacher. The child's teacher testified that the boy had difficulty focusing at times, even in a class of ten students. She also testified that on standardized tests which were administered to him in May of 1996, the child scored at the 7.0 grade equivalent in reading comprehension, 7.3 grade equivalent in vocabulary, and an 8.7 grade equivalent in mathematics. I note that these scores are equivalent to the scores which the boy achieved when he was evaluated by the CSE in April, 1996. A member of respondent’s CSE testified that the CSE had recommended that petitioner’s son receive resource room services because the boy’s academic delays were not sufficiently significant to warrant placing him in a small, self-contained class. She also testified that she was aware of other children who had presented a similar "profile" and had done well in high school, with only resource room services. The educational evaluator who had evaluated the boy for the CSE acknowledged that petitioner’s son had evidenced approximately two-year delays in both science and social studies, but she opined that his weakness in both subjects could be addressed if he received additional reading assignments. The evaluator also testified that a resource room teacher would provide the child with remedial help which was targeted to the specific areas in which his skills were delayed.

        The standardized achievement test results which are in the record are, in one sense, consistent with the boy’s cognitive skills, which were described by the school psychologist as being in the upper end of the borderline range. However, the school psychologist clearly believed that the boy’s cognitive potential was greater than his test scores had indicated. She described the inconsistencies in his performance on both the verbal and performance portions of the IQ test. The educational evaluator also described an inconsistent pattern of performance. She noted that the boy had been able to answer higher level questions with regard to social studies and science, yet he was unable to answer simpler questions in both subjects. Similarly, the disparity between the boy’s scores for mathematical calculation and mathematical application are suggestive of other factors, such as an attention deficit, which have impaired the boy’s academic performance. As noted above, the school psychologist opined that the child’s varied performance on the IQ test which was administered to him was attributable to emotional preoccupation which intruded upon his ability to remain focused. Her opinion was consistent with the testimony which the boy’s English teacher gave at the hearing. Upon the record which is before me, I find that the child required direct special education instruction in a setting which minimized his distraction, such as that offered by the private school in which he was placed. Therefore, I find that petitioner has met her burden of proof with respect to the second of the three criteria for an award of tuition reimbursement.

        The third criterion for tuition reimbursement, i.e., whether equitable considerations support the parent’s claim for reimbursement, was not addressed by the hearing officer. I have considered respondent’s contentions that petitioner had enrolled her son in the Winston Preparatory School prior to having him re-evaluated by the CSE, that she had failed to visit the high school which the CSE had recommended as a placement for her son, and that she had sought to postpone the July 19, 1996 CSE meeting for an inordinate amount of time. However, there is no evidence that petitioner failed to cooperate with the CSE, as its representative acknowledged at the hearing. I agree with respondent that had the CSE been delayed in complying with its obligation to make a timely placement recommendation because of petitioner’s request for the deferral of the CSE meeting until October, 1996, equitable considerations would not support petitioner’s position. However, the CSE was not delayed. Petitioner testified that she had worked with respondent’s staff over an extended period of time, before placing her son in the private school. I find that equitable considerations support her claim for tuition reimbursement.

        At the hearing, petitioner testified that her child’s tuition at the Winston Preparatory School during the 1996-97 school year was $19,450, less a scholarship of $5,500. Although she also referred to an activity fee, a book fee, and parents association dues, I find that those items are not properly included within an award of tuition reimbursement. I will limit her recovery to $13,950.




        IT IS ORDERED that the hearing officer’s decision is hereby annulled; and


        IT IS FURTHER ORDERED that respondent shall reimburse petitioner for her expenditures for her son’s tuition in the Winston Preparatory School for the 1996-97 school year, to the extent which is indicated in this decision, upon petitioner’s presentation to respondent of proof of those expenditures.



Dated: Albany, New York __________________________
October 10, 1997 ROBERT G. BENTLEY