The State Education Department
State Review Officer

No. 98-44

 

Application of a CHILD WITH A DISABILITY, by her 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

Appearances:
Hon. Michael D. Hess, Corporation Counsel, attorney for respondent, Catherine A. Green, Esq., of counsel

DECISION

        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 child's tuition in either of the two private schools in which the child was unilaterally enrolled during the 1995-96, 1996-97 and 1997-98 school years, despite the hearing officer's finding that respondent had failed to provide a free appropriate public education (FAPE) to the child during any of those school years. Respondent board of education cross-appeals from the hearing officer's holding that she was bound by certain factual findings which were made by the United States District Court for the Southern District Court on a motion to dismiss an action which the child's father brought pursuant to 42 USC 1983 against respondent and the New York State Education Department. The appeal must be dismissed as moot in light of my determination of respondent's cross-appeal. The cross-appeal must be sustained in part.

        Respondent requests that I accept its answer, which was served substantially after it had been served with the petition on July 29, 1996. Respondent asserts that it never received a copy of petitioner's notice of intention to seek review, which is to be served upon a board of education 10 days before the petition is served (8 NYCRR 279.2 [b]). It also contends that the petition was served 4 days beyond the 40 day period prescribed by 8 NYCRR 279.2 (b). Respondent acknowledges that its answer is late, but it contends that I should accept its answer if I excuse petitioner's failure to serve a notice of intention to seek review and her brief delay in serving the petition. Although I must caution respondent that it must submit its answers in a more timely manner, I will in the interest of fairness accept its answer and excuse petitioner's brief delay in serving her petition.

        Petitioner's daughter is 17 years old. When the hearing in this proceeding began, she was enrolled by her parents in the Faith Hope and Charity Academy in the Bronx. However, I note that the school allegedly asked the child’s parents to find another place for her during the hearing. The record which is before me contains little information about the child's early education. I note that the child was involved in an automobile accident from which she reportedly sustained a head injury in May, 1990. She was reportedly referred to respondent's committee on special education (CSE) while attending P.S. 243 in 1991. The child's parents reportedly declined to consent to having her evaluated, and the matter was apparently not pursued by the CSE.

        In the fall of 1993, the child was referred to the CSE by her sixth grade teacher in P.S. 309 because of reportedly serious academic and behavioral difficulties (Exhibit 14). During the 1992-93 school year, she lived with her parents in Nigeria, and her father expressed his concern that several residence changes in the preceding years may have had an effect upon the child's education. An educational evaluation which was done in October, 1993 revealed that the child's academic skills were significantly delayed. Although the child was then in the sixth grade, she achieved grade equivalent scores of 2.1 for reading, 2.2 for mathematics, and 1.7 for spelling (Exhibit 4). The evaluator noted that the child appeared to have expressive language difficulties, and had scored at the first grade level on a test of her visual memory skills. The child also manifested a 3-year delay in her listening vocabulary comprehension. A school psychologist who evaluated the child in October, 1993 reported that the child had achieved a verbal IQ score of 56, a performance IQ score of 52, and a full scale IQ score of 50, which was in the moderately mentally retarded range. The school psychologist noted that the child's IQ scores could have been depressed by her language processing difficulties. The child's visual motor skills were also reported to be significantly delayed. The school psychologist also reported that the child evidenced socially regressive behavior, and noted that the child's teacher had indicated that the girl appeared to be withdrawn and unresponsive.

        There is no evidence in the record which is before me that the CSE had obtained a physical examination of the child, which is a necessary component of the evaluation of a child who has been referred to the CSE (8 NYCRR 200.4[b][1][i]). I note that in his petition in this appeal, petitioner asserts that he and his wife repeatedly sought to extend the time for completing a physical examination because they feared that the results of the examination might jeopardize their daughter’s case with an insurance company about the 1990 automobile accident.

        The child was classified as speech impaired by the CSE, and placed in a modified instructional services–III (MIS-III) special education class, initially in P.S. 40 and then in M.S. 141. In June, 1994, the girl's MIS-III teacher referred her to the CSE because she had not completed any assignments, was highly distractible, and had difficulty following simple directions and routines (Exhibit 15). In November, 1994, the school social worker who had been counseling the child since April, 1994 reported that the child's classmates had complained about the child staring at them and touching them, and that the child appeared to be experiencing stress and difficulty in her educational program (Exhibit 7).

        The CSE of Community School District 10 met on November 29, 1994 and December 22, 1994. At one or both meetings, the CSE recommended that the child's classification be changed to mentally retarded and she be placed in a modified instructional services-V (MIS-V) class with a 10:1+1 child to adult ratio. The individualized education program (IEP) which was prepared for the child indicated that she was to receive speech/language therapy in a group of no more than three students twice per week, counseling in a group of no more than three students once per week, and individual counseling once per week (Exhibit 1). I must note that the list of meeting participants on page two of the IEP does not indicate that the child's teacher participated in the CSE meetings (cf. 34 CFR 300.344 [a][2]; Section 4402 [1][b][1] of the New York State Education Law). The IEP also indicates that the child's parents did not attend those meetings. In his Federal Court action, the child's father alleged that he was not notified of the CSE's recommendations, although in January, 1995 in response to a letter from respondent, the father allegedly requested a temporary cessation of any educational evaluation of his child.

        The CSE reconvened on March 27, 1995. Three days before the meeting, the child's MIS-III teacher had reported that the girl was unable to follow class routines which had been established at the beginning of the year, needed to have directions repeated several times, and exhibited inappropriate behavior in the classroom (Exhibit 8). The CSE apparently again recommended that the girl be classified as mentally retarded and placed in a MIS-V class. Although the CSE appears to have been duly constituted, the child's parents did not attend the CSE meeting. In his Federal Court action, the child's father alleged that he was given only two days notice of the CSE meeting, and that his request for an adjournment of the CSE meeting was denied.

        In April, 1995, the child was examined by a school psychiatrist who reported that the girl was functioning at a mild to moderately deficient level of intelligence (Exhibit 6). The psychiatrist diagnosed the child as having an anxiety disorder which was not otherwise specified and a conduct disorder which was also not otherwise specified. The child achieved a score at the fifth percentile on the citywide Degrees of Reading Power Test in May, 1995 (Exhibit L).

        The child's parents reportedly did not learn of the CSE's recommendation until June, 1995. On June 7, 1995, a notice was sent to the child's mother indicating that on December 22, 1994, the CSE had recommended that the girl's classification be changed to mentally retarded, and that she be placed in a MIS-V class " … for September placement." (Exhibit 13) The child's father objected to the proposed classification change for his daughter. He requested that an impartial hearing be held. A hearing was to have been held on July 19, 1995. However, the child's parents did not attend the hearing, reportedly because of illness and because they had not received copies of the contents of the CSE's files about the child. The hearing was dismissed without prejudice to the parents' right to request that a new hearing be held.

        The CSE representative for Community School District 10 testified at the hearing in this proceeding that the child's case was closed by the CSE after it was informed by the child's father that he was enrolling her in the New Covenant Christian School for the 1995-96 school year. In its findings of fact for purposes of the dismissal motion, the U.S. District Court indicated that the State Education Department had investigated a complaint by the child's father and, on September 20, 1995, the Department had advised him that the CSE had " … violated numerous regulations concerning due process notices and evaluation procedures, including the failure to give required notices and to provide records." (Hearing Officer Exhibit 1). The record reveals that a representative of the State Education Department had investigated petitioner’s complaint against the CSE, and had found that the CSE had committed a number of procedural violations and had failed to adequately assess the child to determine her special education needs (Parent Exhibit H). I do not review those findings (8 NYCRR 279.1[c][2]).

        The Court went on to indicate that on October 1, 1995, the child's father was advised that an impartial hearing would be held on October 3, 1995. However, the hearing was cancelled at the father's request because the CSE had reportedly failed to make copies of the child's records available to him (cf. 34 CFR 300.562 [a]). It should be noted that there is very little evidence in the record which is before me about these matters. The CSE representative testified that the CSE had received a State Education Department "finding" in 1997. However, there is a letter dated October 25, 1995 from the CSE chairperson to the child's parents advising them an appointment for a physical examination of their daughter had been obtained in compliance with a request from the State Education Department (Exhibit 11).

        In November, 1995, the child was placed by her parents in the New Covenant Christian School, where she remained until that school closed in 1997. The girl’s parents had placed her in that school, which had not been approved by the State Education Department to provide instruction to children with disabilities, because they reportedly believed that they had no alternative. They did not contact the CSE to request a placement for their child during the next two school years, and the CSE failed to offer the child a placement for those school years. For the 1997-98 school year, the child was unilaterally enrolled by her parents in the Faith Hope and Charity Academy, which is also not approved by the State Education Department to instruct children with disabilities.

        In January, 1997, the child's father commenced an action against respondent and the State Education Department pursuant to 42 USC 1983 and the Individuals with Disabilities Education Act (IDEA), 20 USC 1400 et seq., seeking compensatory and punitive damages and injunctive relief. On November 28, 1997, the Hon. Robert W. Sweet granted the defendants' motion to dismiss the parent's lawsuit on the grounds that his 1983 claims and his IDEA claims were governed by the IDEA requirement that the IDEA's administrative procedures be exhausted before resorting to the Court. In his decision, Judge Sweet noted that " … the factual allegations of the complaint are presumed to be true and all factual inferences must be drawn in the plaintiff's favor and against the defendants…" when considering a motion to dismiss. He then described certain facts which were derived from the parent's submissions and which were reportedly not materially challenged by the BOE or the SED. Among other things, the Court indicated that the child had been placed in a class for the mentally retarded in M.S. 45 without prior notice to her parents on or about October 24, 1995, and that her parents were advised that there was no longer a placement available for the child at M.S. 141, the school she had previously attended. The child's parents then placed her in a private school. The Court rejected the parent's assertion that he was not required to exhaust his administrative remedies because exhaustion would have been futile, and held that he could obtain the relief he sought through the administrative process.

        The child's parents requested a hearing, which began on February 12, 1998. Neither the parents nor respondent had counsel at the hearing. The hearing officer attempted to discern the issues which she would be required to decide. She explained that the parents could obtain the remedy of tuition reimbursement in accordance with the holding in School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985), if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations supported the parents’ claim for reimbursement. The hearing officer also explained that the parents would have the burden of proof with regard to the appropriateness of the private schooling which they had obtained for their daughter:

" … if you want funding for this special education then you have to come forward and show me that the education she us getting is appropriate. That's your job. Because I can't find anything if it's not appropriate" (February 12, 1998 Transcript, page 19).

        The hearing officer also advised the child's parents that they would need to have someone from their child's private school testify about the school. She adjourned the hearing until March 10, 1998 to afford the child's parents an opportunity to review the girl's educational records and to allow the CSE time to send a representative to observe the child in her private school.

        The hearing resumed on March 11, 1998 after a one-day delay because of the hearing officer's unavailability. After a brief discussion about whether the child's parents had reviewed the child's educational records and whether the child had been observed at the private school, the child's father and the hearing officer engaged in a colloquy about the purpose of the hearing. The child's father asserted that he was not seeking public funds for the support of his child in a private school, but was participating in the hearing because he had been directed to do so by the Court (March 11, 1998 Transcript, pages 19-20). A copy of the U.S. District Court's decision was introduced into evidence. The hearing officer indicated that she was bound by those findings, notwithstanding the CSE representative's assertion that she had evidence to dispute some of those findings (Ibid., pages 22-23). After again explaining what remedies she could provide in this proceeding, the hearing officer questioned the child's father about the evidence which he could furnish regarding the appropriateness of his daughter's private schools. He had introduced five exhibits into evidence including a report card for part of the 1996-97 school year and a score sheet for the Stanford Achievement Test which was administered to the girl in April, 1997. The hearing officer instructed him to locate every report card or other report which he had received from the child's private schools. At the request of the child's father, the hearing officer adjourned the hearing until May 11, 1998 to provide the father with an opportunity to gather the relevant evidence.

        On May 11, 1998 the child's father offered a copy of his child's report card for a portion of the 1996-97 school year from the New Covenant Christian School, and a report card for the first marking period of the 1997-98 school year from the Faith Hope and Charity Christian Academy. He did not have other documentary evidence about his child's private schools, and he asserted that he had no choice but to place the child in those schools because respondent had no placement for her. The hearing officer assisted in making arrangements for the child's prompt evaluation by the CSE of Community School District 12, the child's new school district of residence. She then closed the hearing.

        The hearing officer rendered her decision on June 9, 1998. She held that the parties were bound by the "findings" by the U.S. District Court and the State Education Department that respondent had not offered the child an appropriate placement for the 1995-96 school year because it had not ensured the parents’ attendance at the CSE meeting, had not obtained a medical examination of the child, and had failed to provide the parents with certain information which they had requested. The hearing officer found that respondent had not offered the child any placement for the 1996-97 or 1997-98 school year. She held that respondent’s CSE was required to review and revise the child’s IEP at least annually, and that its failure to do so substantiated the parents’ claim that they had satisfied the first criterion for an award of tuition reimbursement.

        The burden of proof shifts to a child’s parents with regard to the second criterion for an award of tuition reimbursement, i.e., whether the services which they obtained for the child were "proper under the [IDEA]" (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 hearing officer found that the child’s parents had not met their burden of proof with respect to either the New Covenant Christian School or the Faith Hope and Charity School during the 1995-96, 1996-97 or 1997-98 school years. She further found that equitable considerations did not support the parents’ claim for an award of tuition reimbursement because they had failed to pursue their administrative remedies for three years, and she denied their claim for reimbursement.

        Both parties assert that the hearing officer erred in rendering her decision. Respondent contends that the hearing officer misapprehended the law in holding that the parties were bound by the U.S. District Court's findings of fact because the Court never made findings of fact. It asserts that the Court was required to assume that all of the material facts in the father's complaint were true for the purposes of deciding the defendants' motion to dismiss for failure to exhaust the parent's administrative remedies, but the Court could not, and did not, make factual findings. I agree with the Board of Education that the purpose of a motion to dismiss is not to assay the weight of the evidence, but to assess the legal sufficiency of the complaint (Geisler v. Petrocelli, 616 F. 2d 636 [2d Cir., 1980]; Johnson v. A,P. Products Ltd., 934 F. Supp. 625 [S.D. N.Y., 1996]). Although the District Court indicated in its decision that the facts upon which it relied were not materially challenged by the Board of Education or the State Education Department, I must note that respondent does challenge some of those facts in this appeal. For example, the Court indicated that respondent had enrolled the child in M.S. 45 without notice to her parents, who learned of it only when school personnel telephoned them to report that the child was frightened by her new surroundings. Respondent asserts in its answer that the child never attended classes in M.S. 45 (Paragraph 73 of the answer). The resolution of this factual question would be necessary to determine whether respondent violated one of the parents' procedural rights, i.e., the right to insist that the child remain in her then current placement while the parents challenge a recommendation to change the child's placement. However, no evidence about this issue was adduced at the hearing in this proceeding.

        In a proceeding of this nature, a CSE has the burden of establishing that it appropriately ascertained the child's educational needs and prepared an IEP in accordance with the procedural and substantive requirements of Federal and State regulations (see, e.g., 34 CFR 300.343-346; 8 NYCRR 200.4 and 200.5). However, the hearing officer effectively precluded respondent from defending the IEP by finding that the District Court's "findings" were binding. Specifically, she found that respondent had committed various procedural violations, based upon the findings by the State Education Department representative. However, respondent must be afforded an opportunity to demonstrate that it had complied with both the procedural and substantive requirements of the law. I have no way of determining whether respondent did in fact commit serious procedural errors amounting to a denial of the child's right to a free appropriate public education because I am limited to the record which is before me (8 NYCRR 279.10).

        Petitioner disputes seven statements made by the hearing officer in her decision, the first of which was that the parents had requested the hearing to obtain funding for their unilateral placement of the child in the two private schools. As her husband asserted on more than one occasion at the hearing, petitioner contends that she and her husband requested the hearing solely because they were required to do so by the decision of the U.S. District Court. Even now, she alleges that the "Financial burden from the unilateral placement after October 24, 1995 is not among our priorities … Our daughter is sixteen going [on] seventeen years old and we felt the BOE and SED is [sic] unable to remedy the alleged injury" (Paragraph 5 of the petition). She also challenges the hearing officer's attempt to secure a public school placement prospectively for the child, but does not identify what remedy she seeks. Petitioner also alleges that individuals who were allegedly subpoenaed to testify at the hearing, such as the CSE psychiatrist who had evaluated the child, did not attend the hearing or testify. There is no indication in the hearing record that this issue was raised at the hearing. Having reviewed the petition, as well as the hearing transcript, I am concerned that no matter how well intentioned petitioner and her husband are, they do not appear to understand what the purpose of the hearing was, or what they needed to do to protect their child's interests.

        For all of the foregoing reasons, I will annul the hearing officer's decision, and direct respondent to promptly schedule a new hearing at which care must be taken to ensure that an adequate record is developed to support whatever determinations which the hearing officer will be required to make and aid those who may review the hearing officer's decision (Riley v. Ambach, 668 F. 2d 635 [2d Cir., 1981]). The hearing officer must also determine whether the child's interests would best be protected by the appointment of a guardian ad litem (see 8 NYCRR 200.5 [c][7]).

 

        THE APPEAL IS DISMISSED.

 

        THE CROSS-APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

 

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

 

        IT IS FURTHER ORDERED that within 10 days after its receipt of this decision, respondent shall schedule a hearing to be held at a mutually convenient time with the child's parents to address the issues which the parents shall clearly identify at the outset of the hearing.

 

Dated: Albany, New York __________________________
May 5, 1999 ROBERT G. BENTLEY