The State Education Department
State Review Officer

No. 98-27


Application of a CHILD WITH A DISABILITY, by his 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

Neal H. Rosenberg, Esq., attorney for petitioner

Hon. Michael D. Hess, Corporation Counsel, attorney for respondent, Lynn A. Scott, Esq., of counsel



        Petitioners appeal from the decision of an impartial hearing officer which found that respondent’s committee on special education (CSE) made an appropriate and timely placement offer for their child, and which denied petitioners' request that respondent be ordered to reimburse petitioners for the cost of their son’s tuition at the Stephen Gaynor (Gaynor) school for the 1997-98 school year. Gaynor, a private school in New York City for learning disabled and speech impaired children, has not been approved by the New York State Education Department as a special education school.

        Petitioners’ son was six years old and in his second year at Gaynor at the time of the hearing. Although it is unclear from the record, it appears that respondent’s CSE had apparently classified the child as speech impaired and recommended a placement for the child for the 1996-97 school year. In any event, this proceeding is limited to the recommendation made by the CSE at its annual review of the child to recommend his educational program for the 1997-98 school year.

        A classroom observation was conducted on November 14, 1996 when the child was in kindergarten at Gaynor. The district’s social worker noted that the child was in a class composed of one teacher, one assistant teacher and six students. The class separated into smaller groups for reading, and the child was one of two students grouped with his teacher. The district’s social worker observed that during reading time, the child was enthusiastic and well-behaved. He read a short story, and correctly answered all of the questions posed to him by his teacher, although the teacher had to repeat some questions. The district’s social worker noted that the child’s spoken words were somewhat slurred. At snack time, the child was observed sitting next to his reading partner and initiating a conversation. The social worker also observed a conversation between the child and the assistant teacher, and characterized the child’s responses to the assistant teacher’s questions as rambling and impossible to decipher. However, in response to another question posed by the assistant teacher, he spoke in a clear voice and recited the addresses of his friends.

        In an educational evaluation conducted on January 27, 1997, the educational evaluator described the child as being cautious and reserved initially, but becoming more engaged as the testing continued. In an informal assessment of the child’s speech/language skills, the educational evaluator noted that while the child expressed his ideas clearly, at times his responses to questions appeared irrelevant. The educational evaluator reported that the child demonstrated superior skills in reading decoding. On the Brigance Inventory, the child read with mastery from a second grade word list, and was able to identify many words from the third grade list. In reading comprehension, the child achieved a grade equivalent score of 2.0. The educational evaluator noted that the child responded better to literal questions than inferential questions. While the child achieved a grade equivalent score of 2.7 on the spelling subtest of the Kaufman Test of Educational Achievement (K-TEA), the educational evaluator noted that he had a shaky quality to his writing, possibly due to an awkward pencil grip, and that his fine motor control was impeded because he wrote his letters from the bottom up rather than top down. The child achieved a grade equivalent score of 2.0 on the math computation subtest of the K-TEA. He was able to identify numbers and count to at least 100. He also was able to add one and two digit numbers and subtract one digit numbers.

        In a psychological evaluation conducted on February 8, 1997, the child earned a test composite score of 123, reflecting superior intellectual ability. The child’s perceptual and non-verbal thinking skills were assessed to be "very superior". His copying of geometric designs with a pencil was superior. The child’s comprehension, vocabulary and arithmetic skills also were assessed to be in the superior range. While the child’s auditory and visual short-term memory skills were areas of relative weakness, he nevertheless achieved an average score according to the norms based on a study of the general population. The psychologist noted that the child had perceptual-motor and speech and language delays, some of which she attributed to the child’s weak musculature. The psychologist noted that the child demonstrated improvement in his emotional, social, perceptual-motor and cognitive development since the last time he was evaluated in January, 1996. She suggested that the child’s weak musculature, distractibility, low frustration, restlessness, language difficulties, and some ritualistic thinking were factors to be considered in his placement.

        In a social history conducted on February 8, 1997 based upon an interview with the child’s mother, the district’s social worker reported that the child received speech and occupational therapy once per week. She also reported that the child was diagnosed with low muscle tone, and that he experienced difficulty with dressing skills and "door knob type" skills. The social worker reported that the child experienced nightly enuresis. A neurological report suggested the possibility of seizures. The social worker reported that the child was scheduled for a neurological examination. The child’s mother indicated that her son’s language processing, sequencing and focusing skills had improved, and that he was "making slow progress" with his peer interaction skills.

        In a speech/language evaluation conducted on March 5, 1997, the district’s speech/ language evaluator reported that the child’s expressive and receptive language, as measured by the Test of Language Development-P-2 (TOLD-P-2), was well within the above average range. She indicated that the most noteworthy observation during the child’s evaluation was his generalization of irregular forms, which she opined was developmental. She indicated that based upon her evaluation, speech/language therapy was not necessary. She opined that developmentally and socially, any errors reflected during the evaluation would disappear as the child grew older.

        In a speech/language progress report completed at the end of the child’s first year at Gaynor, the speech/language pathologist indicated that the child had reduced auditory processing skills, and expressive language delays characterized by immature syntax, difficulty with the organization and formulation of language, and difficulty with word retrieval, which affected the specificity of his language. She reported that the child’s social-pragmatic language skills were reduced, that he had difficulty maintaining a topic, and that he perseverated on the same topic. She noted that the child’s speech was marked by a soft volume, and that despite some mild substitutions, his speech intelligibility was good. The speech/language pathologist indicated that each week the child received one individual session of speech/language therapy, three classroom language group sessions, and one articulation session. She also reported that the child was hypersensitive to outside noises. The speech/language pathologist recommended that the child continue speech/language therapy to improve the difficulties identified above.

        In a school status report of the child completed on May 26, 1997, the child’s head teacher indicated that the child had significant language, attentional and social issues. She noted that the child’s social skills were weak. He had difficulty remaining on topic during conversations, and required refocusing. She also noted that the child’s attention often wandered, particularly during group lessons and discussions. The child’s head teacher reported that the child was a "self-taught" reader due to his strong sight vocabulary, that he could write up to two sentences about a drawing with minimal teacher assistance, that he demonstrated a strong grasp of mathematical concepts and computation, and that he had a good background knowledge and a good memory for science vocabulary. She indicated that the child’s academic instruction took place in groups of up to seven children, and was supplemented with one-to-one remediations. She indicated that the educational environment at Gaynor had enabled the child to make good overall progress in all academic areas.

        A physical therapy assessment of the child was conducted on June 25, 1997. The physical therapist noted that the child demonstrated adequate motor development. She found that he did not present any physical impairment or neurological deficit which would interfere with his performance in a school setting. She did not recommend any therapeutic intervention. A medical documentation form completed by the child’s pediatrician contained a notation that the child was diagnosed with hypotonia, i.e., poor muscle tone, and pervasive developmental delay.

        The CSE met on July 31, 1997 and recommended that the child be classified as speech impaired. The child’s classification is not disputed in this proceeding, and I make no determination of its appropriateness (Hiller v. Bd. of Ed. Brunswick CSD et al., 674 F. Supp. 73 [N.D.N.Y., 1987]). It further recommended that the child be enrolled in a regular education first grade class and that he receive resource room services, as well as direct and indirect consultant teacher services for 150 minutes per week, speech language therapy, counseling and occupational therapy. The CSE also recommended testing modifications of tests administered in a special location, directions read and reread aloud, questions read and reread aloud, answers recorded in any manner, and time limits waived. On August 18, 1997, respondent sent petitioners a final notice of the CSE's recommendation. Petitioners rejected the recommended placement and enrolled their son at Gaynor for the 1997-98 school year.

        Petitioners requested an impartial hearing which was held on January 23, 1998. The hearing officer rendered his decision on April 3, 1998. He found that respondent made a valid and timely placement offer. Accordingly, the hearing officer denied petitioners’ request for an award of tuition reimbursement.

        Petitioners appeal from the hearing officer’s decision on a number of grounds. While petitioners raise several issues regarding the CSE’s actions in developing the child’s IEP, their main challenge is to the recommended placement. I note that while petitioners assert that the CSE meeting was "compromised" because no representative of Gaynor attended the meeting, there is no evidence that the child had been placed in Gaynor by respondent. Therefore, the provisions of 34 CFR 300.349 do not apply. Petitioners claim that their son requires a full-time special education placement. They assert that their son requires small group instruction because he needs to have questions repeated, his answers cannot be understood, he has a tendency to withdraw, and he has other social issues which are better addressed in a small group setting, where, they argue, he has made progress.

        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]).

        The child's IEP listed the results of a psychological evaluation of the child, including the child’s IQ scores, which were in the superior range. It also included the psychologist’s concerns regarding the child’s distractibility, low frustration tolerance, restlessness, motor weakness, and language inconsistencies. The IEP also reflected the results of a speech/language evaluation during which the child’s expressive and receptive language skills were assessed to be above average, based on his performance on the TOLD-P-2. It also included the speech/language evaluator’s observation that while the child’s speech reflected substitution errors, the errors did not affect the gross intelligibility of the child’s expressive speech. Additionally, the IEP included the results of a March 6, 1996 occupational evaluation, not a part of the record in this proceeding, which described the child’s finger muscle strength as poor, characterized his visual tracking skills as not fully developed, and noted that that he was very sensitive to all sensory input. The IEP also reflected the results of the social history and physical therapy evaluation.

        Petitioners argue that the CSE did not properly respond to the child’s neurological issues and sensitivity to noise. I note that no neurological or audiological reports were submitted to the CSE at the July 31, 1997 meeting, nor were any such reports made part of the record in this proceeding. The child’s medical documentation form contained a diagnosis of pervasive developmental delay. There also is a reference in the social history to a neurological exam scheduled for the child. The child’s mother testified that she had shared information from the child’s neurologist informally with the CSE, and was prepared to submit it to the CSE, if necessary. She further testified that her son was examined at the Long Island College Hospital, where it was discovered that he had a very high sensitivity to noise and certain frequencies, and that he was unable to distinguish important sounds, like speech, in a noisy background setting. The child’s father testified that his son was "classified as having" pervasive developmental disorder after having been removed from a special education preschool because of his unusual behavior. I find that these vague references to neurological and audiological conditions are not sufficient to render the child’s IEP inappropriate. A CSE must consider evaluative information which is submitted to it by a child's parents (8 NYCRR 200.5 [a][1][v]). It is incumbent upon the parents to provide relevant information to the CSE so that the child’s needs can be fully identified and understood. Based upon the information before me, I find that the child’s IEP accurately reflected the results of evaluations to identify his needs. I must note, however, that the description of the child’s special education needs appear to be far more extensive than his classification requires. However, as noted above, I am precluded by Hiller from addressing the appropriateness of the child’s classification.

        To address the child’s identified needs, the CSE recommended that the child be placed in a regular education classroom with resource room services, consultant teacher services, speech/language therapy, counseling, occupational therapy, and testing modifications. A representative of respondent’s CSE testified that the CSE recommended resource room services and consultant teacher services to assist the child with organizational skills, responding to teachers’ questions, and keeping on task. She further testified that speech/language therapy was recommended to address the child’s articulation difficulties, his difficulty focusing on the topic of a question, and expressing feelings and emotions when participating in a conversation. She also indicated that counseling was recommended to help the child understand his strengths and weaknesses. Finally, she testified that occupational therapy was recommended to assist the child with his fine motor skills, particularly writing. The IEP included goals to improve the child’s communication and social skills, class-related and organizational skills, memory skills, pragmatic speaking skills, articulation, motor skills and muscle tone.

        I find that the IEP established annual goals and short-term instructional objectives which were related to the child's educational deficits. I further find that the special education services which the CSE recommended that the child receive would afforded him a reasonable opportunity to achieve his goals and objectives. In doing so, I must note that the IEP did not specify the amount of time the child would receive resource room services (cf. 8 NYCRR 200.4 [c][2][vi]). However, 8 NYCRR 200.6 (f)(1) provides that each child who receives resource room services must receive not less than three hours of such instruction per week. For purposes of this decision, I have assumed that the child would have received at least three hours per week. Given the level of the child’s functioning, I am unable to find that he required primary instruction in a full-time special education setting to obtain an educational benefit. Consequently, I find, as did the hearing officer, that respondent has met its burden of proof with respect to the appropriateness of the special education services which it had offered to provide to petitioners' son.

        The central dispute in this proceeding is whether petitioners are entitled to reimbursement for the cost of their son’s tuition at Gaynor. 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]). With respect to the first criterion for an award of tuition reimbursement, whether the services offered by the board of education were appropriate, I have already found that respondent has demonstrated the appropriateness of its recommended program. Accordingly, I find that petitioners are not entitled to reimbursement for their son’s tuition at Gaynor for the 1997-98 school year.

        Having found that respondent demonstrated the appropriateness of its program, I do not address its request to consider additional evidence.

        I have considered petitioners’ other arguments, which I find to be without merit.




Dated: Albany, New York __________________________
January 20, 1999 ROBERT G. BENTLEY