The State Education Department
State Review Officer

No. 98-71




Application of a CHILD WITH A DISABILITY, by his 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


Neal H. Rosenberg, Esq., attorney for petitioner

Hon. Michael D. Hess, Corporation Counsel, attorney for respondent, Amy Melican, Esq., of counsel



        Petitioner appeals from an impartial hearing officer's decision which upheld a March, 1998 recommendation by respondent's committee on special education (CSE) that petitioner's son be educated in respondent's regular education program and receive 30 minutes of speech/language therapy twice per week during the remainder of the 1997-98 school year, and which rejected petitioner's request for an award of tuition reimbursement at the Stephen Gaynor School. The appeal must be dismissed.

        Petitioner's son is 12 years old. The child attended the Calhoun School for prekindergarten, and he remained at that school for kindergarten through the second grade. At the suggestion of the private school, the child was evaluated while in the first grade. The evaluator reportedly recommended that the boy receive language therapy, which was provided to him at his parent's expense through the summer following first grade. The boy's language therapy was reportedly discontinued because he was at a plateau (Exhibit 1). While in the second grade, the boy reportedly received assistance in reading during and after school. Near the end of the second grade, the Calhoun School recommended that the boy again receive language therapy, in addition to extra help in reading, and that he be evaluated. The boy was again privately evaluated. The evaluator reportedly recommended that petitioner's son be placed in another school.

        In September, 1995, petitioner enrolled the boy in the equivalent of the third grade at the Stephen Gaynor School, which has an ungraded program. The Stephen Gaynor School is a private school which has not been approved by the New York State Education Department to provide instruction to children with disabilities. The child continued to attend that school during the 1996-97 and 1997-98 school years. When interviewed by a school social worker for the CSE in February 1998, petitioner reported that her son had thrived while attending the Stephen Gaynor School. I note that the boy's academic records from the Stephen Gaynor School, with the exception of one report by his language therapist during the 1997-98 school, and a school progress report dated January, 1998, are not part of the record which is before me.

        In January, 1998, the boy was referred by his parent to the CSE for an evaluation, and a recommendation for a possible program or placement. He was evaluated by a school psychologist on February 6, 1998. The school psychologist reported that the child had achieved a verbal IQ score of 98, a performance IQ score of 90, and a full scale IQ score of 93. She noted that the boy's performance was in the lower end of the average range when he was required to use his verbal abstract reasoning and auditory memory skills. He had the most difficulty when asked to do mental arithmetic. The child also displayed some weakness in his visual memory/conceptualization skills. The boy's visual motor integration skills were in the average range. The school psychologist reported that the boy's expressive and receptive language appeared to be very well developed, but that he exhibited relative weakness in the area of visual memory. She described him as a healthy, happy, well adjusted boy, and suggested that his teacher use strategies to help him compensate for his weakness in visual memory (Exhibit 2).

        A CSE educational evaluator also evaluated the child on February 6, 1998. On the Woodcock-Johnson Psychoeducational Battery - Revised Test of Achievement, the child achieved grade equivalent and percentile scores of 4.9 (38) for broad reading, 3.5 (12) for broad writing, and 5.2 (38) for mathematics. The child's word attack skills were slightly more than one grade level above his reading comprehension skills. The evaluator reported that the child could identify words, make word associations, and read in context. The child's score in dictation, i.e., spelling, punctuation, etc. was at a 2.7 grade level, while his score on the writing sample subtests was at a 5.9 grade level. The evaluator reported that the boy could arrange his thoughts logically and write syntactically correct sentences. She described him as having strong mathematics skills, despite having difficulty with long division and solving two-step word problems.

        Petitioner's son was observed by a CSE school social worker while in his science class at the Stephen Gaynor School on February 13, 1998. The child was observed for approximately 45 minutes during a lesson about the use of a compass, the magnetic force at the north and south poles, and the earth's weather. Petitioner's son was an attentive participant in the class, but one of the answers he volunteered was incorrect. After the lesson, the child's teacher suggested to the school social worker that the boy's incorrect response demonstrated that he had difficulty processing language.

        On March 2, 1998, petitioner's son was evaluated by a CSE speech/language pathologist, who reported that the boy's voice was slightly hoarse, but that his speech pitch, rate, volume, and fluency were within normal limits. Despite one substitution, the child evidenced excellent speech articulation skills. The evaluator noted that a medical examiner had reported in May, 1997 that the boy had normal hearing. The speech pathologist reported that the child's verbalizations consisted of a variety of sentence patterns, and that some grammatical and syntactic errors were noted. She further reported that the child's auditory processing abilities were variable, and ranged from significantly above average to severely deficient. She indicated that his performance was much better when information was concrete and pictorial clues were provided. On the Clinical Evaluation of Language Fundamentals - 3, the child achieved standard (and percentile) scores of 96 (39) for receptive language skills, and 78 (7) for expressive language skills. She reported that the child had difficulty formulating sentences which were semantically acceptable and grammatically correct when using a stimulus word or phrase. His performance on that task was in the moderately deficient range. On one subtest he manifested a severe deficiency in his ability to comprehend, recall, and interpret information which had been orally presented to him.

        In addition to the evaluation reports and the report of the classroom observation, the CSE also received two reports from the Stephen Gaynor School. The first report was prepared by the boy's speech/language therapist, who indicated that the child was receiving two individual sessions of speech/language therapy per week, as well as four group sessions of such therapy within the classroom. She asserted that the boy's receptive language was characterized by significantly reduced auditory processing skills and word retrieval difficulties, while his expressive language was characterized by weak organization and formulation, and by non-specific vague use of language. She further asserted that his ability to comprehend verbal information was impeded by a limited short-term memory. She noted that the boy was a concrete thinker, and asserted that he required visual stimuli to facilitate his comprehension of abstract information. The speech/language therapist indicated that the boy displayed significant weakness organizing language to convey meaning. She asserted that he had made great progress, and continued to benefit from intense language intervention.

        The other report from the Stephen Gaynor School was a letter prepared by the Lower School Coordinator of that school, who indicated that the boy was being helped with his difficulties involving expressive language, language processing and delay, reading comprehension, inferential thinking, and a practical application of mathematical principles. She indicated that he received daily reading and spelling instruction in a group of three children, and was assisted by a learning specialist who saw him individually twice per week. The Lower School Coordinator also indicated that the boy was taught mathematics in a group of four. She opined that it was in the boy's best interest to remain in the Stephen Gaynor School.

        On March 12, 1998, the CSE met with the boy's parents to determine if the boy was eligible to be classified as a child with a disability, and what, if any, special education services should be provided to him. The CSE recommended that the boy be classified as speech impaired. I note that at the hearing in this proceeding, petitioner's attorney stipulated that there was no dispute as to the appropriateness of that classification. The CSE also recommended that petitioner's son be instructed in regular education classes, while receiving two 30-minute sessions of speech/language therapy per week in a group of no more than three children. The individualized education program (IEP) which the CSE prepared for the boy included annual goals to improve his auditory processing skills, his semantics, morphology, grammar, and syntax, and his pragmatic language skills. On March 19, 1998, respondent offered the boy a placement in P. 75, with after-school speech/language therapy.

        On April 13, 1998, petitioner requested an impartial hearing to review the CSE's recommendation. The hearing was scheduled to begin in April, but was adjourned until June 5, 1998. It began that day, and ended on June 25, 1998. At the hearing, petitioner and the boy's father indicated that the relief which they sought was an award of tuition reimbursement for the period from March 12, 1998 to the end of the 1997-98 school year. The Stephen Gaynor Lower School Coordinator, the boy's speech/language therapist, and his teacher at the Stephen Gaynor School testified that the boy had significant language deficits which affected his ability to learn, particularly with regard to orally presented information. They opined that he could not successfully function in a large regular education class even with the support of the twice-weekly speech/language therapy which the CSE had recommended that he receive. The CSE school psychologist, educational evaluator, and speech pathologist agreed with the staff of the Stephen Gaynor School that the boy had some language processing difficulties, but they disagreed with the Gaynor staff's description of the severity of the boy's difficulties, noting that his academic performance was on grade level and consistent with his cognitive ability. They testified that the boy's weaknesses could be addressed by the speech/language therapy which the CSE had recommended.

        The hearing officer rendered his decision on September 17, 1998. He noted that 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]).

        The hearing officer found that the child could benefit from placement in a regular education program, if his language and writing problems were addressed. He further found that the recommended two periods of speech/language therapy per week would have been adequate to remediate the boy's language and writing difficulties. Given that finding, the hearing officer found that the CSE was required to place the child in a regular education setting in order to be consistent with the requirement that the child be placed in the least restrictive environment. Since the CSE had done so, the hearing officer found that respondent had met its burden of proving that it had offered to provide an appropriate educational program to the child. He further found that the boy's placement in the Stephen Gaynor School was not appropriate because it was too restrictive an environment. The hearing officer also denied petitioner's claim for tuition reimbursement on the grounds that equitable considerations did not support her claim because he did not believe that petitioner would have accepted any public school placement, and because the child had never previously attended a public school.

        An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the child's needs, provides for the use of appropriate special education services to address the child's special education needs, and establishes annual goals and short-term instructional objectives which are related to the child's educational deficits (Application of a Child with a Disability, Appeal No. 93-9; Application of a Child with a Disability, Appeal No. 93-12). Petitioner asserts that the CSE failed to accurately identify her son's special education needs. She contends that the CSE failed to test the boy's writing skills, relying upon the school psychologist's testimony that she did not test his writing skills. However, the CSE's educational evaluator did assess the boy's writing skills with the Woodcock Johnson Psychoeducational Battery. The results of that evaluation were described in the boy's IEP. Consequently, I find that petitioner's contention is without merit.

        Petitioner further contends that the CSE appeared to disregard the extent of her son's writing deficits, noting that on the dictation subtest of the Woodcock Johnson Psychoeducational Battery - Revised Tests of Achievement her son's 2.7 grade equivalent score was at the fourth percentile. At the hearing, respondent's educational evaluator testified that the child's score for dictation was low because he had trouble using capital letters and tried to spell phonetically. However, he was able to form irregular plurals and contractions. She noted that his grade equivalent score on the writing samples subtest was 5.9, which was at the fifty-fifth percentile, and that his overall writing skills were at the 3.5 grade equivalent, which was the twelfth percentile. The evaluator testified that the boy's overall skills were only slightly below average, and that the deficit in his dictation skills could be addressed by a regular education teacher in the classroom. Although petitioner also asserts that the record demonstrates that the IEPs of children with disabilities are not shared with regular education teachers, I am not persuaded of the truth of that assertion, despite the testimony by two of respondent's witnesses that they were unaware of whether the IEPs were shared.

        Petitioner asserts that the school social worker who observed her son during a science class at the Stephen Gaynor School failed to note that the class was reviewing material which had previously been presented to it, and failed to discuss her son's needs with his speech/language pathologist at the private school. The school social worker's report of the observation indicated that the boy's teacher told her that the lesson was a review (Exhibit 6). At the hearing, the school social worker testified that she was unable to speak to the boy's speech/language pathologist because of a scheduling problem. However, there was no requirement that she do so as part of an observation. Therefore, I find that the observation was adequate.

        The primary disagreement between the parties is about the extent of the child's special education needs. Petitioner asserts that her son has significant language processing deficits, and that he needed full-time special education instruction in a very small educational setting with much adult intervention in order to benefit from instruction. She relies upon the testimony by the child's teacher, his speech/language pathologist, and the Lower School Coordinator of the Stephen Gaynor School. Petitioner contends that since respondent's representative at the hearing did not cross-examine these witnesses, all of their direct testimony must be deemed to be true. However, I am required to base my decision on the entire record, which includes the child's standardized test results and the testimony by the CSE staff who evaluated the child for the CSE.

        The CSE's educational evaluator and its speech/language pathologist each acknowledged that the child had some mild language processing deficits, but each opined that petitioner's son did not require full-time placement in a special education class to address his language processing deficits. The CSE's speech/language therapist testified that the child's communication skills were much greater than those of children who were typically enrolled in full-time special education classes. She noted that the child's performance on the standardized tests which she administered to him was variable, and cautioned about placing too much reliance upon the result of any single subtest. The CSE's educational evaluator testified that the child's instructional range for reading was from 3.8 to 6.4, while his instructional range for writing was from 2.4 to 5.0. His instructional range for mathematics was from 4.1 to 6.4. At the time of the child's evaluation, he was enrolled in an ungraded class. However, the educational evaluator testified that the boy was at the chronological equivalent of mid-fifth grade.

        Respondent was required to offer the child a placement in the least restrictive environment. The relevant Federal regulation, 34 CFR 300.550 (b)(2), provides that:

" ... special classes, separate schooling or other removal of children with disabilities from the regular educational environment occurs only when the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily."

        Upon the record which is before me, I find that the CSE's recommendation that this child be placed in a regular education class with the related service of speech/language therapy was appropriate to enable the child to receive educational benefits, and was consistent with the requirement that he be placed in the least restrictive environment. As noted above, a board of education may be required to pay for educational services which a child's parent obtained for him, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent's claim (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]). Since I have found that the CSE's recommendation was appropriate, petitioner's request for an award of tuition reimbursement must be denied.





Dated: Albany, New York __________________________
November 19, 1999 ROBERT G. BENTLEY