The State Education Department
State Review Officer

No. 98-16

Application of the BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK for review of a determination of a hearing officer relating to the provision of educational services to a child with a disability

Appearances:
Hon. Michael D. Hess, Corporation Counsel, attorney for petitioner, Simon P. Gourdine, Esq., Special Assistant Corporation Counsel, Paul Ivers, Esq., and Sonia Barcarcel, Esq., of counsel

Neal H. Rosenberg, Esq., attorney for respondents

 

DECISION

        Petitioner, the Board of Education of the City School District of the City of New York, appeals from the decision of an impartial hearing officer which ordered petitioner to reimburse respondents for the residential costs of their son’s placement at the Benedictine School for Exceptional Children (Benedictine), in Still Pond, Maryland, for the 1995-96 school year. The appeal must be dismissed.

        Respondents’ son, who was 17 at the time of the December 24, 1997 hearing, was classified as mentally retarded by petitioner’s committee on special education (CSE). The child’s classification is not in dispute. He attended The Child School in New York City from 1985 until he graduated in 1995.

        On May 14, 1995, an augmentative communication evaluation was conducted by the child’s consulting speech/language pathologist. The speech/language pathologist reported that the child was functionally nonvocal and had a limited sign language vocabulary. She described the child as "uniquely challenged" because he displayed proficiency with technology based communication and educational tools, but also had severe learning disabilities. The speech/language pathologist reported that the child had participated in an intensive technology based communication program since July, 1993, and that recent technological advances allowed the child to increase his perceptual skills and his ability to work independently. She indicated that the child used two distinct computer systems for academic and communication activities, and that continuation of a customized technology based approach to learning was essential for the child to receive an appropriate education and to develop adequate expressive communication. The speech/language pathologist noted that the child had severe learning challenges and opined that he required specific technological intervention, with specific hardware and software, presented in a customized fashion in order to access his higher level cognitive and language skills. She recommended an educational placement which focused on educational technology and prevocational skills. She suggested a residential placement for the child, noting that the child required an intensive communication and educational experience which could not be obtained in a typical school day.

        Petitioner’s CSE met on May 22, 1995 to develop the child’s individualized education plan (IEP) for the 1995-96 school year. The CSE recommended that the child be classified as mentally retarded, and that he be placed as a day student in a private school, with the related services of occupational therapy and speech/language therapy. The IEP indicated that the child was an easily agitated, disorganized boy who required close supervision in all aspects of his special education program. It also provided that the child required an intensive, structured, specialized instructional environment to develop basic cognitive-linguistic and communication skills, as well as self-help and self monitoring skills. The IEP further noted that the child was not able to benefit from mainstream experiences.

        Petitioner recommended four private schools to respondents. Only two of the recommended schools showed an interest in the child, only one of which had an opening for the child. After conferring with the child’s consulting speech/language pathologist and investigating the recommended schools, respondents determined that the recommended schools were not appropriate to meet their son’s needs. They placed their son at Benedictine in September, 1995.

        Respondents requested an impartial hearing to seek reimbursement for their son’s placement at Benedictine. The hearing was held on May 24, June 18, and July 9, 1996. At the hearing, the district’s representative testified that the CSE had recommended that the child be placed in a private school and that outreach was made to several private schools. He questioned whether respondents made a reasonable effort to find a placement closer to New York. Petitioner did not present any other witnesses, nor did it submit evidence of an appropriate placement for the child at any place other than Benedictine.

        The child’s consulting speech/language pathologist and the Educational Director at Benedictine testified on behalf of respondents. The child’s speech/language pathologist testified that the child had been referred to her three years ago because he had only limited success with communications boards, sign language and traditional speech/language therapy. She indicated that the child responded to technological intervention, and that certain technology tools that were customized for him increased his attention span. She stated that the child had developed the necessary skills to use a computer independently. The child’s speech/language pathologist further testified that the child required an educational setting that had a strong technologically based verbal and communication program, a combination academic and prevocational program, with either a residential or after school component. She testified that she was not aware of any school, other than Benedictine, that had a strong technologically based program. She stated that she had visited the child at Benedictine, and that he had made significant progress in his behavior and communication skills.

        The Educational Director at Benedictine testified that Benedictine offered comprehensive, individualized programs to assist students to best access, benefit and learn from the instruction offered. She stated that the school’s primary objective was to provide educational opportunities to assist students to become independent. She indicated that students at Benedictine are taught in groups of no more than six by teachers who are licensed by the State of Maryland. Teachers work with students on a one-on-one basis in the specific area of a student’s disability, and in the areas of communication and augmentative communication,. She stated that the child participated in a total communication class, and that he received speech/language services for a minimum of four hours and 20 minutes per week, adaptive physical education for three hours per week, vocational training for three and one-half hours per week, and home economics, music and art for one hour per week. The Educational Director at Benedictine further testified that the residential component at Benedictine offered some of the same services that the child received during the day such as behavioral programming, socialization training, and leisure and vocational skills training, and, in addition, provided the child the opportunity to practice those skills in an educational, vocational and community setting. She indicated that she believed that the school was meeting the child’s needs.

        The hearing officer rendered his decision on September 6, 1996. He found that the child had benefited from the program and that the child’s placement at Benedictine was appropriate. The hearing officer ordered that, "[t]he Board of Education shall reimburse the parents for the school’s tuition for the 1995-96 school year. The relief requested by the parents is otherwise denied."

        On January 16, 1997, petitioner authorized reimbursement for payment of the child’s tuition costs at Benedictine. On May 28, 1997, petitioner requested that respondents submit documentation of tuition payments in the form of cancelled checks and attendance records. Respondents submitted the required documentation which was received by petitioner in June, 1997. Respondents received a check in the amount of $27,652 on June 16, 1997. Upon receipt of the check, respondents inquired about reimbursement for residential costs. Respondents cashed the check on June 23, 1997. In October, respondents’ attorney contacted attorneys for petitioner and was advised that petitioner’s position was that the hearing officer’s decision ordered reimbursement for tuition only. Respondents filed a motion seeking clarification of the hearing officer’s decision. A hearing was held on December 24, 1997 during which respondents explained the reason for the delay in requesting clarification of the hearing officer’s decision. Petitioner argued that the hearing should not have been held. It further argued that the hearing officer’s decision was clear, and pursuant to law, final. It claimed that having failed to file a timely appeal, respondents were attempting to circumvent the proper appeals procedures. After reading the transcript and his decision, the hearing officer indicated that it was his intention that the entire cost, including the residential component, be reimbursed. He indicated that he was not rendering a new decision, but rather, simply clarifying what he had previously decided. On March 2, 1998, the hearing officer issued a Findings of Fact And Decision clarifying his September 6, 1996 decision.

        Petitioner appeals from the hearing officer’s March 2, 1998 decision on a number of grounds. Initially, petitioner asserts that the hearing officer abused his discretion by granting the parents’ motion to reopen a prior final decision and by amending that prior decision. Petitioner argues that the reopening of a prior decision violates the finality requirement of the Individuals With Disabilities Education Act (20 UCSC 1400) as well as the principle of res judicata. It further argues that there is no authority in law or regulation permitting a hearing officer to reopen a prior decision. It contends that the available remedy was to appeal the decision, and that by holding a hearing, the hearing officer improperly permitted respondents to avoid the consequences of failing to timely file an appeal.

        A decision made in an impartial due process hearing under the IDEA and Article 89 of the Education Law is final unless a party to the hearing appeals the decision (34 CRF 300.509; 8 NYCRR 200.5 [c] [11]). I agree with petitioner that the hearing officer had no authority to entertain a request to reopen or to conduct a hearing to reconsider his prior decision. The parents’ request for clarification of the hearing officer’s September 6, 1996 decision should not have been resolved by what appears to be a new hearing. The record shows, however, that the hearing officer merely clarified his September 6, 1996 decision at the December 24, 1997 hearing. After reviewing the July 9, 1996 transcript and the September 6, 1996 decision, I am persuaded that the hearing officer intended to include reimbursement for residential costs in his decision. Having found that the hearing officer intended to include residential costs in his September 6, 1996 decision, I acknowledge that the board was aggrieved by that decision, and in the interest of fairness, I will entertain its appeal from that decision at this time. 

        The question which I must decide is whether the child required a residential placement. 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]). The record shows that the child benefited from an extended day program. The child’s speech/language pathologist testified that the child required a residential placement, and that he had made gains in his behavior and communication skills. The Educational Director at Benedictine testified that the child had made progress at Benedictine, and that the services he received during the residential component were necessary to reinforce the skills he needed to learn to become independent. The board offered nothing to refute the testimony presented by respondents regarding the child’s need for a residential placement. Respondents’ witnesses also testified that Benedictine was the only school on the east coast that offered a strong technology based verbal and communication program. Again, the board failed to offer any evidence to refute this testimony or to support the existence of a day program which was appropriate for the child. Accordingly, I find that Benedictine was the least restrictive environment for the child, and that respondents are entitled to be reimbursed for the cost of the child’s residential placement in that school.

        THE APPEAL IS DISMISSED.

 

Dated: Albany, New York __________________________
October 2, 1998 ROBERT G. BENTLEY