The State Education Department
State Review Officer

No. 98-70

 

 

 

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

 

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

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

DECISION

        Petitioners appeal from the decision of an impartial hearing officer which denied their request for an award of tuition reimbursement for their son’s unilateral placement at the Vincent Smith School (Smith), a private school in Port Washington, New York, for the 1997-98 school year. The appeal must be dismissed.

        Preliminarily, I will address a procedural issue raised in this appeal. Petitioners assert that the hearing officer failed to render a decision within the required time frame. Federal and State regulations require each board of education to ensure that its hearing officers render their decisions within 45 days after the board receives the request for a hearing (34 CFR 300.512[a]; 8 NYCRR 200.5[c][11]). Respondent received petitioners' request for a hearing on March 12, 1998. The hearing began on March 19, 1998, at which time respondent requested an adjournment. The hearing officer granted respondent’s request, and scheduled the hearing to continue on April 23, 1998. On April 23, 1998, respondent requested another adjournment, which also was granted by the hearing officer. The hearing resumed on May 26, 1998, when petitioners presented their case. During the hearing, respondent requested an opportunity to present rebuttal evidence on a subsequent date. The hearing officer again granted respondent’s request. The hearing concluded on June 2, 1998. Respondent submitted a memorandum of law on June 9, 1998, in response to a memorandum of law submitted by petitioners at the May 26, 1998 hearing. Petitioners submitted a reply memorandum of law on June 19, 1998. The hearing officer rendered her decision on September 11, 1998.

        Petitioners claim that the hearing officer improperly granted respondent’s requests for adjournments. I must note that although hearings are to be conducted expeditiously, a hearing officer may grant an adjournment at the request of either party. If the 45-day time limit would be exceeded by an adjournment, the hearing officer should treat the request for an adjournment as a request for an extension of the 45-day time limit as is provided for by 34 CFR 300.512 (c). Obviously, such adjournments should only be granted for good cause. The two adjournments were granted because the parties had reportedly been engaged in settlement discussions, which in my opinion would be good cause to grant an adjournment. However, the hearing officer's delay in rendering her decision after the hearing had ended is unexplained. While the unexplained delay is questionable, I find that it does not provide a sufficient basis for annulling the hearing officer’s determination. However, I remind respondent of its responsibility to ensure that hearing officers adhere to timeliness requirements.

        Petitioners’ son was 12 years old and in the seventh grade at the time of the hearing. He attended P.S. 188, in District 26, in Queens from kindergarten through the fifth grade. He was diagnosed as having an attention deficit disorder (ADD) while in the first grade, and has been taking Ritalin since that time. While in the second grade, during the 1992-93 school year, the child was initially referred to respondent’s committee on special education (CSE), which classified him as other health impaired. The CSE recommended that the child receive occupational therapy, as well as consultant teacher services five hours per week. The record does not reveal what services the child received while in the third and fourth grades.

        In the fall of 1995, the child received a triennial evaluation, the results of which were reflected in the individualized education program (IEP) which the CSE prepared in December, 1995. I note that the evaluations were not included in the very limited record which is before me. In an educational evaluation conducted on October 31, 1995, the child’s vocabulary skills were assessed to be above average and his short-term recall was assessed to be in the average range. He exhibited excellent math, reading, and spelling skills. However, his writing was described as almost illegible, his speech pattern was described as choppy, and it was noted that he needed to be refocused.

        In a social history completed in October, 1995, petitioners described their son as socially isolated, and they indicated that he was passive, disorganized, sensitive, and good-natured. The results of a psychological evaluation completed on November 1, 1995 were also included on the child’s IEP. His composite score on the Stanford-Binet Intelligence Scales (4th Edition) was in the high average range. The psychologist who performed the evaluation noted that the child was intelligent and agreeable, but somewhat anxious, immature, passive-dependent, insecure, and socially isolated. The psychologist opined that while the child had developed sufficient controls and coping skills to address his anxieties and immaturities, his passive-dependent personality, insecure style, and social isolation difficulties needed to be addressed.

        The CSE recommended that the child continue to be classified as other health impaired. It also recommended that the child receive consultant teacher services, for at least three periods per week, in addition to occupational therapy and counseling. Additionally, the CSE recommended testing modifications of extended time, answers recorded in any manner and a separate location. The child’s management needs listed on his IEP included poor organizational and handwriting skills, and social awkwardness.

        At the end of the child’s fifth grade year, he received final ratings of unsatisfactory in reading, written language and science, needs improvement in oral language and social studies, and satisfactory in mathematics. He also received a final rating of unsatisfactory in work and study habits. The teacher’s comments indicated the child did not complete many homework assignments. After conferring with his teachers who recommended a non-public school placement, petitioners requested that their son be reevaluated. The CSE began evaluating the child in July, 1996. The child’s mother visited the middle school the child would have attended had he remained in District 26, and found it unsuitable for her son. As respondent had not recommended a placement the 1996-97 school year for the child, petitioners enrolled their son in Smith for the sixth grade. Smith has not been approved by the New York State Education Department to provide special education to children with disabilities.

        The CSE met on September 27, 1996 to develop the child’s IEP for the 1996-97 school year. The IEP included information from a social history update which was completed in July, 1996. It indicated that the child continued to do poorly in school because he lacked organizational skills, was highly distractible, tended to daydream, and was sensitive to his sense of social isolation. It was noted that other children tended to label the child unflatteringly. The child’s IEP also included the results of an educational evaluation conducted on July 11, 1996. The child’s reading, spelling and math scores were assessed to be above grade level. Additionally, it was noted that the child’s cursive writing was legible, but that his pencil grasp continued to be awkward.

        The results of a psychological examination conducted on July 11, 1996 were also included on the child’s IEP. The child’s overall level of cognitive functioning fell within the upper limit of the average range. He demonstrated strengths in quantitative skills, abstract reasoning, auditory memory and visual memory. Weaknesses were exhibited in the areas of concentration, social judgment, verbal reasoning and graphomotor skills. The child demonstrated slight visual-motor and visual perceptual delays. He was impulsive, had poor organizational skills and was perfectionistic. With respect to social and emotional functioning, the child had a poor self-image, low self-esteem, feelings of inadequacy, and struggled with dependency issues.

        The CSE recommended that the child be classified as other health impaired and emotionally disturbed. The child’s classification is not on dispute, and I do not consider its appropriateness (Hiller v. Bd. of Ed. Brunswick CSD et al., 674 F. Supp. 73[N.D.N.Y., 1987]). It further recommended that he be placed in a non-public school. The CSE referred the case to the Central Based Support Team (CBST) to identify non-public schools that would be appropriate for the child. The CBST representative contacted several non-public schools, only two of which indicated an interest in the child. In February, 1997, the CBST representative was informed by petitioners that they were happy with their son’s placement at Smith and were not interested changing his placement during the school year. At the end of February, 1997, the CBST representative referred the child back to the CSE at District 26. At some point during the 1996-97 school year petitioners requested an impartial hearing seeking tuition reimbursement for that year. In April, 1997, respondent agreed to reimburse petitioners for the tuition and expenses they incurred on behalf of their son for the 1996-97 school year.

        The CSE did not recommend a placement for the 1997-98 school year. Petitioners continued their son’s placement at Smith for that year. On March 12, 1998, petitioners filed a request for an impartial hearing, seeking reimbursement for the 1997-98 school year. As noted above, the hearing began on March 19, 1998 and concluded on June 2, 1998. The hearing officer rendered her decision on September 11, 1998. She found that petitioners failed to establish that the services provided at Smith met the child’s special education needs.

        Petitioners appeal from the hearing officer’s decision on a number of grounds. Initially, petitioners challenge the impartiality of the hearing officer. In their petition, petitioners claim that in October, 1998, after the hearing officer rendered her decision, they learned that the hearing officer’s husband was employed by respondent as an assistant principal in another Community School District, and that she failed to disclose this fact prior to the hearing. A challenge to the hearing officer’s impartiality on the same grounds was recently dismissed in another appeal (Application of a Child with a Disability, Appeal No. 98-51). As I noted in that decision, I am troubled by the hearing officer’s failure to at least disclose her husband’s employment by respondent in Community School District 6, however, I find that her failure to do so does not afford a sufficient basis for annulling her determination. Having reviewed the transcript and the hearing officer’s decision, I find that there is no evidence of any actual bias against petitioner.

        Petitioner seeks an award of tuition reimbursement. 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]).

        As respondent has conceded that it failed to provide an appropriate program for the child for the 1997-98 school year, petitioners have prevailed on the first criterion for an award of tuition reimbursement. With respect to the second criterion for an award of tuition reimbursement, the child's parents bear the burden of proof with regard to the appropriateness of the services which the parents obtained for the child at the Vincent Smith School 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).

        The question before me is whether Smith offered an educational program which met the child’s special education needs. I note that the record is limited with respect to the child’s special education needs for the 1997-98 school year. However, the record does show that the child was functioning above grade level in reading, mathematics, spelling and language in April, 1996, as he neared the end of the sixth grade (Exhibit K). However, his study skills were reported to be below grade level, and he consistently exhibited deficits in his organizational and grapho-motor skills, as well as his ability to remain focused on a task. In addition, the record shows that the child had social and emotional needs, although there is no specific information as to the nature or severity of those needs. The Director of Smith testified that the child was in a class with only nine other students. She indicated that because the class was small, the teacher was able to redirect the child, keep him focused and organized, and monitor his homework. She further testified that the child did not receive occupational therapy or counseling, although she asserted that there were " … a lot of support services as far as his emotional needs" (Transcript, page 126), and she indicated that he did not receive any special services. The Smith administrator also indicated that the child had gained confidence, and was able to function and finish his work at a faster rate. She stated that the child participated in the drama club, had made a friend, and had become more relaxed with his peers. However, I note that the boy's teachers consistently commented about his organizational difficulties, failure to complete assignments and social awkwardness in their February, 1998 observation reports. While the child’s report card shows that he was achieving A’s and B’s, the record shows that he still exhibited the same needs with respect to his organizational, grapho-motor, focusing and social and emotional skills as he did before entering Smith. Further, it is unclear from the record how the program at Smith was individualized to meet the child’s needs. In this instance, the child's special educational needs were more social/emotional than academic. Although the hearing officer explained what kind of evidence she sought from the Director's testimony, the Director did not, in my opinion, show specifically how the private school met the boy's needs. Therefore, I find that petitioners have not met their burden with respect to the second criterion for an award of tuition reimbursement.

        I note that petitioner challenges the hearing officer’s determination to allow the testimony of the CBST representative and the conclusions the hearing officer reached as a result of that testimony. While it was within the hearing officer’s discretion to allow the testimony of the CBST representative with regard to non-public placement efforts during 1996-97 school year, I agree with petitioners that their reluctance to change the child's placement during the middle of the 1996-97 school year does not support the hearing officer's inference that they were not seriously interested in receiving a placement offer for the 1997-98 school year. However, that point is moot in light of my finding that petitioners did not meet their burden of proof on the second criterion for an award of tuition reimbursement.

        I have considered petitioners' other claims which I find to be without merit.

 

        THE APPEAL IS DISMISSED.

 

Dated: Albany, New York __________________________
August 31, 1999 ROBERT G. BENTLEY