The State Education Department
State Review Officer

No. 98-77

 

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 for the City of New York

 

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

Hon. Michael D. Hess, Corporation Counsel, attorney for respondent, Laura H. Corvo, Esq., of counsel

 

DECISION

        Petitioner appeals from the decision of an impartial hearing officer which denied her request for tuition reimbursement for the cost of her son's tuition at the Stephen Gaynor School (Gaynor) for the 1997-98 school year. The hearing officer denied petitioner's claim, despite having found that respondent's committee on special education (CSE) of Community School District 3 had failed to demonstrate the appropriateness of the resource room it had recommended because she found that petitioner had not proven the appropriateness of the services provided by Gaynor. The appeal must be dismissed.

        Petitioner's son was 13 years old, and in the equivalent of a seventh grade class at Gaynor at the time of the hearing. Gaynor has not been approved by the New York State Education Department to provide education to children with disabilities. The child attended kindergarten through second grade at P.S. 89, and third grade at P.S. 83. He reportedly did not receive any special education services when he attended public school. The child repeated third grade at the Chapel School, which is a private school in Bronxville, New York. He entered Gaynor in September, 1994 for fourth grade, and has remained in that school. During the 1994-95 school year, the child reportedly was first referred to the CSE in Community School District 11, which recommended that the child not be classified as a child with a disability. However, an impartial hearing officer subsequently ordered respondent to reimburse petitioner for her child's tuition at Gaynor. The child's case was transferred to the CSE of Community School District 3, which recommended that the child not be classified as a child with a disability during the 1995-96 school year. An impartial hearing officer upheld the CSE's recommendation. In Application of a Child with a Disability, Appeal No. 96-31, I annulled the hearing officer's decision, and ordered respondent to reimburse petitioner for the cost of her child's tuition at Gaynor. The CSE failed to offer a placement for the 1996-97 school year. That matter was resolved by stipulation.

        In August, 1996, when he was eleven years ten months old and having completed the equivalent of the fifth grade at Gaynor, the child was evaluated by a private psychologist. He achieved a verbal IQ score of 106, a performance IQ score of 108, and a full scale IQ score of 107 on the WISC-III, placing him in the average range of intellectual functioning. The private psychologist noted that the child's current evaluation was consistent with previous evaluations, because he continued to function in the average range, with weaknesses in auditory attention, language processing and expression, word retrieval, and perceptual motor, graphomotor and organizational skills. Despite such weaknesses, the child scored within grade level expectations, with the exception of reading skills, on the Wechsler Individual Achievement Test (WIAT), which the psychologist indicated was a measure of the child's mastery of the curriculum. The child achieved standard composite scores of 89 for reading, 100 for math, 111 for language, and 99 for writing. The private psychologist reported that the child exhibited attention weaknesses which negatively affected his ability to function independently in school and to do his homework.

        The private psychologist indicated that the child's performance was hampered by a significant underlying language and learning disability. She further indicated that he had difficulty with abstract thinking, and retrieving words and previously acquired information. Additionally, his short-term auditory memory skills were weak. The private psychologist noted that the child had difficulty with organizational skills, and that he required assistance to keep on target. She reported that he also exhibited weaknesses in comprehension, and he was anxious about his performance. Additionally, his perceptual skills were variable and he was weak in the mechanics of written work. The private psychologist further reported that the child's writing skills were significantly lower than his cognitive potential, which resulted in frustration, and which negatively affected his motivation and feelings about himself. The results of the child's personality testing revealed impulsivity, poor affect regulation, and low frustration tolerance.

        The private psychologist opined that although the degree of the child's difficulties was relatively mild, they nevertheless had a noticeable effect on his functioning. She reported that his performance improved when he was given strategies with which to approach material. The private psychologist recommended consultation for management of the boy's attention weaknesses, and counseling to help him understand and cope with academic difficulties. She also recommended that he remain at Gaynor. Additionally, she made a number of recommendations for specific classroom strategies and also recommended consultation with a language pathologist as needed to implement strategies in the classroom.

        The child was observed in class by a school psychologist on December 6, 1996. The class was involved in a language arts lesson, during which the child readily participated and readily began an assignment. The school psychologist observed that the child interacted well with both the teacher and his classmates. The child's teacher described the child as having a unique personality, noting that the child's fund of general information was very strong and that he had a wide variety of interests. However, he indicated that the child had a tendency to be very literal and that his thinking was concrete. The child's teacher also indicated that the child had difficulty perceiving cause and effect relationships, and could misread social situations. The teacher suggested that the child may continue to need a special education setting.

        A pediatric neurologist who evaluated the child reported his results in a letter dated May 6, 1997. He described the child as alert and cooperative. The pediatric neurologist noted that the child's general speech fluency was grade appropriate, and that his general fund of knowledge was commensurate with his IQ, but that he demonstrated some visual inattentiveness. While the child's reading decoding was satisfactory, he tended to make substitutions for words. The child acknowledged that he sometimes had to reread passages to get the full meaning. The pediatric neurologist further noted that the child demonstrated some spatial disorganization in his writing. He also found that the child exhibited some auditory sequential processing difficulties. The pediatric neurologist opined that the child had features of an attention deficit disorder (ADD), and suggested a trial of medication, but noted that the child appeared to feel threatened by his suggestion.

        A social history based upon an interview with the child's mother was conducted on May 31, 1997. The child's mother advised the district's social worker that her son had benefited both academically and emotionally at Gaynor. She indicated that her son required repetition and review during instruction, and that he needed much support with his homework. She further indicated that the child was receiving group speech language therapy several times per week. She stated that her son was easily frustrated, and needed firm limits and much structure.

        In an educational evaluation conducted on May 31, 1997 when the child was completing the equivalent of the sixth grade at Gaynor, he achieved grade equivalent scores of 8.3 on basic reading, 6.0 on reading comprehension, 6.9 on numerical operations, 8.3 on math reasoning, 6.9 on spelling and 5.9 on written expression. The educational evaluator described the child's overall learning behavior as quick, analytical and capable. She indicated that the child demonstrated a good command of the English language, and that his social interaction was appropriate. The educational evaluator reported that the child was reading on grade level. He was able to prepare a writing sample expressing his thoughts and developing a given topic, but he demonstrated delayed graphomotor skills. The educational evaluator noted that the child had improved two to three years in reading and math since his last evaluation in May, 1995. She indicated that the boy's fundamental academic skills were on or above grade level expectations, and that they would continue to improve in a middle school environment.

        The CSE met on July 21, 1997 to develop the child's individualized education program (IEP) for the 1997-98 school year. It recommended that the child be classified as learning disabled, and that he receive resource room services five days per week, one period per day, as well as 40 minutes of group counseling per week. In its written rationale for its recommendation, the CSE indicated that it believed that the boy's delays in reading comprehension and organizational skills could be addressed by a part-time special education placement. Additionally, it recommended counseling to address the child's compromised sense of self, attention deficits and impulsiveness. The child returned to Gaynor for the 1997-98 school year. On September 23, 1997, petitioner requested an impartial hearing.

        In December, 1997, petitioner had her son privately evaluated by a learning disabilities specialist. The learning disabilities specialist noted that the child was taking Dexadrine to control symptoms of ADD. On the WISC-III the child achieved a verbal IQ score of 102, a performance IQ score of 104, and a full scale IQ score of 104, placing the child in the average range of intellectual functioning. The test scores indicated that the child manifested advanced practical reasoning capacities, had developed an extensive general knowledge base, and that his visual motor skills and visual scanning capacitates were highly developed. However, the child demonstrated difficulties in perceiving and manipulating visual details, which the learning disabilities specialist noted could undermine some cognitive and academic capacities. While the child achieved at least in the average range on additional visual perception testing, he had difficulty combining a visual memory task with a writing task. The learning disabilities specialist described the child's auditory perceptual skills as erratic. His scores ranged from the lower end of average to bright average. The learning disabilities specialist indicated the child's receptive language skills were marked by a somewhat underdeveloped vocabulary base. While the child's written language was not as well developed as his oral language abilities, his ideas were presented in sequence and were "exceptionally well organized." The learning disabilities specialist indicated that additional instruction was necessary in the mechanics of writing. With respect to expressive language skills, the child demonstrated solid word retrieval abilities. His expressive language at the single word level and the narrative level was assessed to be age appropriate.

        The language disabilities specialist described the child's reading skills as variable. His general reading skills were assessed to be within the average range, however, deficits were noted when the child was asked to focus on very specific and detailed information and/or when he was involved in independent reading tasks. The language disabilities specialist also noted that the child's literal reading comprehension skills were considerably more developed than his analytical reading comprehension abilities. The child's spelling skills were assessed to be within the average to high average range, and his mathematics skills were assessed to be somewhat beyond grade level expectations. The learning disabilities specialist opined that the child has benefited from the remediation offered at Gaynor, as well as from medication to address his attention difficulties, and psychotherapy to address emotional issues enabling him to make considerable progress in cognitive, perceptual language and academic areas.

        After several mutually agreed upon adjournments, the impartial hearing was held on June 12, 1998. The hearing officer rendered her decision on October 7, 1998. She found that the evaluation conducted by the CSE was adequate. She further found that the recommended program of resource room, counseling and testing modifications was appropriate. She rejected petitioner's contention that the site of the recommended program was inappropriate because it was near Gaynor, rather than petitioner's home, by pointing out that petitioner could have requested a different site. However, because the CSE failed to present specific evidence about the program, the hearing officer was unable to determine its appropriateness. Accordingly, she found that the CSE failed to establish the appropriateness of the recommended resource room class. The hearing officer further found that a full time special education program was overly restrictive for the child as he was achieving at and above grade level. Therefore, she found that petitioner failed to prove the appropriateness of the services that she obtained for her son. Accordingly, the hearing officer denied petitioner's request for tuition reimbursement.

        Petitioner appeals from the hearing officer's decision on a number of grounds. Initially, she challenges the impartiality of the hearing officer. In the petition, petitioner indicates that in October, 1998, she 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, precluding petitioner from making a motion for the hearing officer to recuse herself. 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.

        Additionally, petitioner claims that the child's deficits in the areas of reading, and study and organizational skills are more severe than the CSE determined. The IEP includes the results of the child's educational evaluation conducted on May 31, 1997 which showed that the child's basic reading skills were at an 8.3 grade level and his reading comprehension skills were at a 6.0 grade level. The private testing which was done almost five months after the CSE made its recommendation did not indicate that the boy had a more severe reading problem. On both the Woodcock Reading Mastery Test-Revised and the Gray Oral Reading Test, petitioner's son achieved grade equivalent scores which were at or above his actual grade level, except for word attack skills. The CSE established goals for improving the child's reading and study skills. The short term instructional objectives under the goal of study skills addressed organizational skills. I have considered the recommendations of the child's private evaluators with regard to the boy's study and organizational skills, and I find that their recommendations would be adequately addressed in the child's regular classroom and daily resource room services.

        Petitioner is seeking 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]).

        Respondent argues that petitioner is not entitled to tuition reimbursement because her son has never received special education and related services under the authority of a public agency. It argues that petitioner is precluded from obtaining an award of tuition reimbursement because the amendments to the Individuals With Disabilities Education Act (IDEA). Section 1412(a)(10)(C)(ii) of the IDEA reads as follows:

"(ii) Reimbursement for private school placement

        If the parents of a child with a disability, who previously received special education services under the authority of a public agency, enroll the child in a private elementary or secondary school without consent of or referral by the public agency, a court or hearing officer may require the agency to reimburse the parents for the cost of that enrollment if the court or hearing officer finds that the agency had not made a free appropriate public education available to the child in a timely manner prior to that enrollment.

        This argument was made by respondent in another appeal (Application of a Child with a Disability, Appeal No. 98-25). As I noted in that decision, absent convincing evidence to the contrary, I cannot conclude that the statute was meant to preclude an award of tuition reimbursement to the parent of a child who had not previously received special education services from a school district.

        As noted above, the hearing officer found that the CSE was unable to establish the appropriateness of the recommended class. Respondent has not appealed or cross-appealed this determination. Therefore, petitioner has prevailed with respect to the first criterion for an award of tuition reimbursement.

        With respect to the second criterion for an award of tuition, the child's parent bears the burden of proof with regard to the appropriateness of the services which the parent obtained for the child at Gaynor 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 issue to be determined is whether the child's placement in a school for children with disabilities is consistent with the requirement that he be educated in the least restrictive environment. Although the child was placed by his parent, rather than the school district, at Gaynor, petitioner's claim for tuition reimbursement is premised upon the provisions of the Individuals with Disabilities Education Act (20 USC 1400 et seq.) which requires that children with disabilities be educated in the least restrictive environment (see P.J. v. State of Connecticut, 788 F. Supp. 673 [D. Conn., 1972]; Application of a Child with a Disability, 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]). That requirement must be balanced against the requirement that they receive an appropriate education (Briggs v. Bd. of Ed. of the State of Connecticut, 889 F. 2d 688 [2d Cir., 1989]).

        The record shows that the child's IQ was in the average range, but that he had weaknesses in a variety of areas including reading, language processing, and organizational skills. As noted above, the private psychologist indicated that despite such weaknesses, the child scored within grade level expectations. The educational evaluation also demonstrates that the child was functioning at grade level. The record further shows that the child benefited from the remediation and instruction he received at Gaynor, and that he had learned to compensate for his deficits. The private evaluators were consistent in their opinion that the child had made considerable progress at Gaynor. Furthermore, petitioner's learning disabilities specialist opined that the child could be ready for a mainstream school. Based upon the information before me, I am not persuaded that a full-time special education placement was appropriate for this child given his level of functioning. Accordingly, I find that the child's placement in a full-time special education program was inconsistent with the requirement of placement in the least restrictive environment, and that petitioner has not satisfied the second criterion for award of tuition reimbursement.

        I note that petitioner requests a remedy in the form of partial relief seeking reimbursement for the services that addressed her son's special education needs. However, she fails to provide a basis for the apportionment of such relief. Moreover, there is no information in the record that suggests a reasonable cost for the special education services the child required. Under the circumstances, I am unable to fashion such relief. Having reached this conclusion, it is not necessary that I address whether the equities favor petitioner's claim for reimbursement.

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

 

        THE APPEAL IS DISMISSED.

 

Dated: Albany, New York __________________________
December 10, 1999 ROBERT G. BENTLEY