The State Education Department
State Review Officer

No. 98-18

 

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

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

Hon. Michael D. Hess, Corporation Counsel, attorney for respondent, Elizabeth A. Galani, Esq., and Masako C. Shiono, Esq., of counsel

DECISION

        Petitioners appeal from the decision of an impartial hearing officer which upheld the recommendation by respondent’s committee on special education (CSE) that petitioners’ daughter should no longer be classified as a child with a disability, and which denied petitioners’ request that respondent be ordered to reimburse petitioners for the cost of their daughter’s tuition at Eagle Hill School in Greenwich, Connecticut, for the 1997-98 school year.  The appeal must be sustained in part.

        Petitioners’ daughter was 15 years old and in the ninth grade at the time of the hearing. She attended Columbia Grammar and Preparatory School, a highly competitive independent school in New York City, until the 1995-96 school year when she was in the seventh grade. While in seventh grade, the child began to receive failing grades and her parents transferred her to Winston Preparatory School (Winston Prep), which is also located in New York City.

        In December, 1995, the child reportedly received a verbal IQ score of 107, a performance IQ score of 112, and a full scale IQ score of 110. She also earned a standard score of 111 on a test of her visual motor integration skills. The girl reportedly manifested a weakness in her sequential memory, as well as a lack of self-esteem. When tested in February, 1996, the girl's reading skills were reported to be at or above the ninth grade level. However, her spelling skills were at a fifth grade level, and her mathematics skills were at the sixth to seventh grade level.

        In a speech/language evaluation conducted on March 12, 1996, the Detroit Test of Learning Aptitude was used to assess the child’s communicative competency. The evaluator reported that the child’s receptive/expressive vocabulary was in the above average range and her auditory memory and processing was in the average range. It was noted that the child’s sentence constructions were developmentally immature, however, overall, the child was functioning in the average range in language development. The evaluator recommended that classroom stimulation be increased to improve the child’s expressive communication skills.

        On March 19, 1996, respondent's CSE recommended that the child be classified as learning disabled and that she receive resource room services five days per week for one period per day. The child’s individualized education program (IEP) indicated that she required small group instruction because of her difficulty with processing information. Petitioners did not accept the CSE's recommendation. The child finished the seventh grade at Winston Prep, and was placed by petitioners at Eagle Hill for the 1996-97 school year.

        In a classroom observation conducted at Eagle Hill in January, 1997, the child was described as being an active contributor to class discussions, and focused and attentive during the class. The evaluator noted that the child interacted well with other students and that she interacted appropriately with the teacher. The evaluator reported that the child’s teacher characterized the child’s writing as rudimentary, and had indicated that the child had auditory processing problems and that she needed frequent repetitions. The child’s educational advisor at Eagle Hill indicated that the child was very smart and that she took the initiative academically, but that she appeared scattered at times and had a tendency to misinterpret information.

        A social history update was conducted by the district’s social worker on May 3, 1997, based upon an interview with the child’s mother. The child’s mother indicated that her daughter’s self-esteem had improved and that she was emotionally secure because of her positive experience at Eagle Hill. It was reported that the child participated on team sports at Eagle Hill.

        An educational evaluation was completed on May 3, 1997 by the district’s educational evaluator. The educational evaluator reported that the child displayed a mild degree of anxiety throughout the evaluation and that she became visibly frustrated at times. The educational evaluator observed that the child’s attention and concentration skills were appropriate for the tasks presented, that her speech and language skills were adequate for conversation and instruction, that her vocabulary skills were at grade level, and that she used complete sentences and appropriate phrases. The child was able to follow simple and complex three to four step directions without clarification or repetition. On the Woodcock Reading Mastery-R Form G, the child’s overall reading skills were measured at approximately two to three years above grade level. She scored at grade level in vocabulary, above grade level in sight vocabulary, and well above grade level in word attack and passage comprehension. On the Kaufman Test of Educational Achievement, the child’s overall mathematics skills were measured at approximately one year above grade level. The child scored above grade level in mathematical applications, and below grade level in computational skills, her weakest area. The child’s time, money and measurement skills were adequate for her age and grade. Her spelling skills were reported to be one year above grade level. Although the child demonstrated the ability to write a logical paragraph using appropriate punctuation and capitalization, the educational evaluator noted that the child’s skills needed to be further developed to become more commensurate with her reading abilities.

        In a psychological evaluation conducted on May 17, 1997, the district psychologist reported that the child’ s expressive and receptive language skills were age appropriate. The district psychologist noted that the child demonstrated poor frustration tolerance when questions or tasks were difficult. On the Wechsler Intelligence Scale for Children (WISC-III), the child achieved a verbal IQ score of 110, a performance IQ score of 117, and a full scale IQ score of 114, placing her in the average range of intelligence. She demonstrated strengths in numerical reasoning ability, word meaning, and ability to discriminate between details. The child’s perceptual organization skills fell in the average range, and she demonstrated age appropriate perceptual motor skills. The district psychologist reported that the child presented as an immature, sometimes insecure, girl who felt inadequate when she could not provide the correct answer or complete a task. The district psychologist also conducted a vocational assessment on May 17, 1997. She noted that the child appeared anxious and had poor self-confidence. On the Harrington O’Shea Career Decision Making System, the child’s responses indicated interests in the fields of science and the arts.

        A year end report was completed by Eagle Hill on June 12, 1997. The child’s Educational Advisor indicated that the child had made progress. She noted that the child appeared to enjoy the learning process and expressed an interest in more challenging work. The child received ratings of "applies skill independently" and "applies skill with periodic review" in most of the skills listed on her academic reports. The year end report included the child’s scores on standardized tests administered in May, 1997. On the Stanford Diagnostic Reading Test, the child achieved a total score of 85%, placing her in the above average range. On the Gilmore Oral Reading Test, she achieved a grade equivalent score of 9.8 in accuracy and 9.7 in comprehension. The child achieved a grade equivalent score of 9.4 on the Slosson Oral Reading Test.

        The CSE met on June 27, 1997 for the child’s annual review. It recommended that the child no longer be classified and that she be placed in a general education program, because she was functioning above grade level academically. The CSE recommended that the child receive testing modifications of "time waived-double time" to assist her in making the transition from being tested in small class to testing in a mainstream setting. In its Rationale (Exhibit 9), the CSE noted that the child’s intellectual functioning was in the average range with evidence of higher potential, and that there were no signs of perceptual or learning dysfunction. The CSE further noted that the child had a history of adjustment difficulties and high anxiety levels, but that current assessments indicated positive growth. By letter dated July 25, 1997, the CSE notified petitioners of its recommendation.

        The child was evaluated by a private psychiatrist in August and September, 1997. The private psychiatrist found that the child met the criteria for a diagnosis of Attention Deficit Disorder. He reported that the child had shown increased focus and concentration at school, after having received a low dose of Ritalin. The psychiatrist indicated that the child had a marked learning disability in both language and mathematics, although he did not explain the basis for that finding. He also indicated that the child required a small, structured, classroom setting with specialized programs and tutoring.

        Petitioners continued their daughter’s placement at Eagle Hill for the 1997-98 school year. They requested an impartial hearing, which was held on October 5, 1997 and December 1, 1997. At the hearing, two educational evaluators testified on behalf of respondent. The educational evaluator who conducted the May, 1997 evaluation testified that the child’s skills were above grade level and that she performed appropriately for her age. The educational evaluator who participated in the annual review in June, 1997 testified that the CSE did not recommend any services for the child because the child had scored well on the standardized tests, had compensated for her difficulties, and had made progress. However, the educational evaluator indicated that she was in favor of providing the child with some support services.

        The child’s educational advisor testified on behalf of petitioners. She testified that Eagle Hill is a private, ungraded school for children ages 6 to 16 with learning disabilities, with a total enrollment of 194 students for the 1997-98 school year. The child’s educational advisor stated that the child’s largest class had a student to teacher ratio of 13:1, and her smallest class had a student to teacher ratio of 3:1. She indicated that the child had perceptual processing difficulties in that the child had difficulty interpreting and obtaining information from her environment which was exacerbated by her tendency to be distractible. The child’s educational advisor indicated that the child needed an educational setting that provided structure and guidance to ensure that the child was processing information accurately. She indicated that questioning the child to encourage class participation, providing the child structured outlines for writing assignments, and teaching the child how to take notes from written and oral material had been effective strategies. The child’s educational advisor further testified that the child was fragile and insecure. She stated that the child was hesitant to participate in class for fear of being wrong and appearing foolish. The child’s educational advisor opined that the child had made progress at Eagle Hill. She indicated that the child appeared more comfortable in a smaller setting and felt secure enough to volunteer and participate in class. The child’s educational advisor also testified that the child continued to have significant weaknesses which would prevent her from performing up to her potential in a large classroom setting. She indicated that without support, the child would not perform at her current level.

        The hearing officer rendered his decision on March 27, 1998. He found that the child was performing at grade level in all areas, and that she did not have any deficits that would materially affect her ability to function in a regular education program. Accordingly, the hearing officer found that respondent was not responsible for the child’s tuition at Eagle Hill.

        Petitioners challenge the hearing officer’s decision on a number of grounds. They assert that the hearing officer’s conclusions were improper and incorrect. Petitioners claim that the CSE failed to meet its obligations because there was no formal vote at the June meeting. Petitioners further claim that the CSE did not consider Eagle Hill’s report, nor did it attempt to obtain information from the child’s teacher. In addition, they argue that the CSE failed to consider the child’s previous experience in regular education.

        The board of education bears the burden of establishing the appropriateness of the CSE's recommendation that a child not be classified as a child with a disability (Application of a Child Suspected of Having a Disability, Appeal No. 93-18; Application of a Child Suspected of Having a Disability, Appeal No. 94-36; Application of a Child Suspected of Having a Disability, Appeal No. 94-41; Application of a Child Suspected of Having a Disability, Appeal No. 94-42).

        The amended Individuals with Disabilities Education Act (20 USC 1400 et seq., hereinafter "IDEA"), which became effective on June 4, 1997, requires a board of education to evaluate a child before determining that that child is no longer a child with a disability (Section 1414[c][5] of the IDEA). As part of a reevaluation, the CSE must review existing evaluation data on the child, including evaluations and information provided by the parents of the child, current classroom based assessments and observations, and teacher and related services providers observation (Section 1414[c][1][A] of the IDEA). On the basis of that review and input from the child’s parents, the CSE must identify what, if any, additional data are needed to determine whether the child continues to have such disability, the present levels of performance and educational needs of the child, and whether the child continues to need special education and related services (Section 1414 [c][1][B]). If the CSE determines that no additional data are needed to determine whether the child continues to be a child with a disability, the board of education shall notify the child’s parents of that determination and the reasons for such determination. The CSE must also inform the parents of their right to request an assessment to determine whether the child continues to be a child with a disability (Section 1414 [c][4][ii] of the IDEA).

        The record shows that at its June 27, 1997 meeting, respondent’s CSE reviewed the March, 1996 speech/language evaluation, the January, 1997 classroom observation, the social history update, the educational evaluation, the psychological evaluation, the vocational assessment and the year end report form Eagle Hill. The CSE believed that it had sufficient information to determine whether the child continued to be a child with a disability because it made a recommendation to declassify the child. However, the record does not indicate that petitioners’ input was obtained regarding the need for additional data. Furthermore, there is no documentation in the record demonstrating that petitioners were notified of the determination that no additional data were needed, or that they were advised of their rights based upon that determination as required by Section 1414 [c][4][ii] of the IDEA.

        Additionally, once the CSE determined that the child no longer needed special education services and could be placed in a regular education program on a full-time basis, it should have considered whether the child required any declassification support services (8 NYCRR 200.4 [c][1][iii]). Although the CSE recommended that the child have the benefit of testing modifications to ease her transition back into a mainstream setting, there is no evidence in the record that any declassification support services were considered. The record shows that the child was anxious and had adjustment difficulties. At the very least, the CSE should have recommended declassification support services to assist the child in making the transition to a regular classroom setting with 30 students. Counseling should also have been considered.

        Based on the information before me, I find that respondent failed to comply with the requirements of the IDEA and the Regulations of the Commissioner of Education when it determined that the child was no longer a child with a disability, and therefore did not meet its burden of proof establishing the appropriateness of its recommendation to declassify the child. Having found that the respondent failed to properly declassify the child, I do not reach petitioners’ other challenges regarding the CSE’s recommendation.

        Petitioners contend that the hearing officer erred in denying their request for tuition reimbursement for the 1997-98 school year. 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’s CSE recommended that the child not be classified. It, therefore, did not recommend a program of special education services. In light of my finding that respondent’s CSE failed to show the appropriateness of its decision to declassify the child, the child remained eligible to receive a program of special education services pursuant to IDEA and Article 89 of the Education Law. I find that respondent failed to meet its burden with respect to the first criterion for tuition reimbursement, i.e., that the program which its CSE recommended was appropriate.

        The child's parents bear the burden of proof with regard to the appropriateness of the services which the parent obtained for the child at Eagle Hill during the 1997-98 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).

        Petitioners must also show that their daughter’s placement in a private school which serves children with disabilities, and thus provides no opportunity for instruction with this child's peers, is consistent with the requirement that children with disabilities be placed in the least restrictive environment (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 CSE's initial determination to classify the child as learning disabled is not part of this appeal. Consequently, I will not address the appropriateness of that classification (Hiller v. Bd. of Ed. Brunswick CSD et al., 674 F. Supp. 73 [N.D. N.Y., 1987]). I have nevertheless reviewed the record to ascertain the nature and extent of her educational needs, so that I could determine whether Eagle Hill met those needs, and whether her needs were so severe as to require placement in such a restrictive setting.

        The results of her most recent psychological evaluation reveal that the child is of average intelligence. Many of her IQ subtest scores were in the above average range. Her perceptual organization skills were less well developed, yet they were still within the average range. Furthermore, her perceptual motor skills were found to be age-appropriate. The school psychologist reported that the child had poor self-confidence, which the child's advisor at Eagle Hill confirmed in her testimony at the hearing. Academically, the child did not appear to have any significant deficiencies (see Exhibits 4 and 5). The child's advisor testified that the child had benefited from being in small classes and receiving the support which Eagle Hill had provided to her. When asked what specific services were being provided to the child, the advisor testified that a very structured process was being used to teach the child to write, and that was in a "tutorial" with a 3:1 child to adult ratio, where she received instruction in reading and study skills.

        Upon the record before me, I am compelled to find that the child's educational needs were not severe enough to require placement in so restrictive a setting as Eagle Hill.

        Having found that petitioners did not meet the second criterion for an award of tuition reimbursement, it is not necessary that I address the issue of whether equitable considerations support petitioners’ claim for tuition reimbursement.

 

        THE APPEAL IS SUSTAINED THE EXTENT INDICATED.

 

        IT IS ORDERED that the hearing officer's finding that respondent had met its burden of proof with respect to the appropriateness of the services which it offered to provide during the 1997-98 school year is hereby annulled, but his order that respondent is not responsible for the child’s tuition for the 1997-98 school year is sustained.

 

Dated: Albany, New York __________________________
October 9, 1998 ROBERT G. BENTLEY