The State Education Department
State Review Officer

No. 98-79

 

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 Howard Rosenberg, Esq., attorney for petitioner

Hon. Michael D. Hess, Corporation Counsel, attorney for respondent, Amy F. Melican, 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 York Preparatory School (York) for the 1998-99 school year. The hearing officer denied petitioner’s claim, despite having found that respondent’s committee on special education (CSE) failed to offer a placement for the child for that school year. The appeal must be sustained.

        The child was nearly 14 years old and in the eighth grade at York at the time of the hearing. York is a private school in Manhattan which has not been approved by the State Education Department as a school for children with disabilities. The child was initially referred to respondent’s CSE in 1994. The CSE classified the child as emotionally disturbed, and he has remained classified as emotionally disturbed. The CSE also recommended that he be placed in a non-public day school. The child began attending the Karafin School (Karafin), a private school in Mount Kisco, New York, in 1994 for the fourth grade. He remained there through the 1997-98 school year.

        In March and May of 1997, when the child was in the sixth grade, he was evaluated by a private psychologist at his mother’s request to determine whether he should remain at Karafin for another school year. The private psychologist noted that previous evaluations indicated that the child had a history of significant behavioral problems since very early in his life. The child reportedly exhibited oppositional behavior, poor social development, and was unable to function in a day care setting. The previous evaluations indicated that shortly before his fifth birthday, the child was diagnosed as having an attention deficit hyperactivity disorder (ADHD). The child was prescribed Ritalin to address his ADHD, and it was recommended that he be placed in small classes with intensive support.

        The child was reportedly evaluated again in January, 1991, when he was six years old, and was found to meet the diagnostic criteria for an oppositional defiant disorder (ODD). He was described as having significant problems with classroom behavior, such as attention difficulties, impulsiveness, and aggression with peers. The evaluator noted that the child had severe stressors in his life. His parents were divorced, he was separated from his father, his mother was attending school, he experienced academic frustration and his peer relations were impaired, all of which exacerbated his emotional well being.

        The private psychologist referred to an individualized education program (IEP) prepared in August, 1994, which included a teacher report from the child's third grade year at Alexander Robertson School, a private school in New York City. It indicated that the child tested in the very high range of intelligence on the Differential Ability Scales, but described him as very disorganized in his work habits. It also noted that the child failed to complete tasks assigned to him, and he refused to follow teacher directions. The child was further described as having little frustration tolerance, lacking in empathy, and threatening to other students. His teacher noted that the child had on occasion physically hurt other students, and at times, had deliberately injured himself. He was characterized as disruptive to other students, disrespectful to adults and peers, and chronically oppositional.

        On the WISC-III, the child achieved a verbal IQ score of 106, a performance IQ score of 115, and a full-scale IQ score of 111, placing him in the above-average range of intellectual functioning. The child exhibited superior visual spatial abilities. His scores for both concentration and processing speed were significantly lower than his baseline measures, which the private psychologist noted, was fully consistent with impairments associated with ADHD. The child reported significant problems with distractibility, initiating and organizing work tasks, sustaining attention, and utilizing working memory. The child also demonstrated significant problems with managing his moods. He indicated that he was hypersensitive to criticism, experienced excessive irritability, had difficulty managing his anger, and had other chronic problems in managing his affect, which the private psychologist noted was indicative of a possible mood disorder.

        On the Woodcock-Johnson Revised Tests of Achievement, the child achieved grade equivalent scores of 10.1 in broad reading, 5.9 in broad math, 5.6 in broad written language, and 6.3 in broad knowledge, indicating that the child's overall abilities in reading were in the superior range, while his scores for math, written language, and factual knowledge were in the average range. The private psychologist noted that the child's writing score reflected his difficulty to fluently generate sentences in response to prompts. The private psychologist opined that the child's relative weaknesses would likely become more problematic as he advanced to higher grades, but that his educational prognosis could be quite good if his weaknesses were addressed. The private psychologist indicated that the child had been attending Karafin since the fourth grade, and that he responded well to its highly structured program and low student to teacher ratio. He noted that the child had been maintained on Dexedrine for his ADHD and Prozac for his mood problems throughout his years at Karafin. As the child showed some indicators of mood regulation problems, the private psychologist recommended that the child continue to be clinically observed.

        In late 1997, petitioner requested a change of placement for her son because she believed that the academic program at Karafin was not sufficiently challenging for her son. On February 5, 1998, the CSE reviewed the child's placement, and adhered to its previous recommendation that he attend a non-public school. It also recommended that he receive individual and group counseling. However, it did not identify a specific placement for the 1998-99 school year. The child's IEP provided that the child continued to need the support of a small, structured, non-public school setting to address his behavioral needs, and a stimulating academic program to match his cognitive abilities. The IEP included the results of the Woodcock-Johnson Tests of Achievement, which was reportedly administered on September 18, 1997, on which the child achieved grade equivalent scores of 9.3 in broad reading and 6.4 in broad math. The IEP indicated that mathematical calculation was the child's area of weakness. He reportedly had difficulty lining up columns, solving long division, and working with fractions. The IEP also included information obtained during a parent interview which was conducted on September 26, 1997. Petitioner indicated that her son was doing well academically and that he liked school, but that he needed to be further challenged. Additionally, the IEP noted that the child needed to develop a more mature social sense toward his peers and greater self-assurance.

        The results of a psychological evaluation conducted in August, 1997 were also included in the IEP. The child achieved a verbal IQ score of 117, a performance IQ score of 130, and a full-scale IQ score of 125 on the WISC-III, placing him in the superior range of intellectual functioning. His areas of relative weakness included arithmetic reasoning, vocabulary, and speed of executing a simple rote task involving hand-eye coordination. The IEP noted that the psychologist who evaluated the child in August reported that the child was a tense, guarded person, who felt unsafe in the world, and whose peer connections were uneven. He tended to use imagination and fantasy as a refuge. The child's IEP also listed the results of an occupational therapy evaluation completed in October, 1977, in which he was found to have a subtle perceptual motor dysfunction. His letter formation, sizing, and spacing were poor, and he had poor left/right integration.

        In a letter to the CSE dated July 31, 1998, the child’s psychiatrist indicated that he had been treating the child for an attention deficit disorder and a bipolar disorder since August 8, 1997. The psychiatrist indicated that he was seeing the child on a weekly basis and that the child was taking dextroamphetamine and lithium carbonate. He noted that while the child’s response to treatment had been good, he continued to need weekly psychotherapy. He further indicated that a more academically challenging yet behaviorally structured educational environment would assist the child in reaching his maximum potential. In a second letter to the CSE dated September 16, 1998, the child’s psychiatrist reiterated his position that the child should be placed in a more academically challenging environment. He indicated that it was absolutely essential to have a more challenging academic environment to help the child reach his maximum potential. The psychiatrist noted that the child was medicated for a severe case of ADHD, as well as for early manifestations of a potentially "gravely disabling mood disorder". He noted that despite the emotional and academic challenges facing the child, the child worked hard to overcome an inordinate amount of psychosocial stressors. The psychiatrist further indicated that the child was capable of a more rigorous academic challenge in the appropriate controlled setting.

        Petitioner unilaterally enrolled her son at York for the 1998-99 school year on April 30, 1998. She originally requested a hearing in May, 1998, but withdrew her request because of an injury. In July, 1998, she again requested an impartial hearing, which was held on September 17, 1998. At the hearing, respondent's representative had acknowledged that the CSE was aware of petitioner's concerns about her son's placement, and that the CSE had failed to offer a specific placement for the 1998-99 school year. However, respondent contended that the boy's placement in York was inappropriate because it did not provide him with counseling. Petitioner did not challenge her son's classification as emotionally disturbed, or the CSE's recommendation that he attend a non-public school.

        The hearing officer rendered her decision on October 4, 1998. She found that the CSE which had prepared the boy's IEP was invalidly composed because it lacked a school psychologist member. She also found that respondent had not meet its obligation to offer the child an appropriate placement for the 1998-99 school year, as respondent conceded that it had not offered a placement to the child for the 1998-99 school year. However, she also found that petitioner failed to sustain her burden of proving that York was an appropriate setting to meet her son's educational needs because York did not have any services to address the child’s emotional needs or to provide counseling, and because his math teacher at York was not a special education teacher.

        Petitioner, who was not represented by an attorney at the hearing, asserts that she was deprived of an opportunity to fairly present her case. I find that there is no basis in the record to support her assertion that the hearing officer abused her authority by asking questions of the witnesses. A hearing officer may ask such questions as are necessary to elicit adequate information on which to base his or her decision (Application of a Child with a Disability, Appeal No. 96-72; Application of a Child with a Disability, Appeal No. 96-85). Petitioner further asserts that the hearing officer should have reminded her of her right to request an adjournment so that she could ascertain whether her son would make progress at York. While proof of educational progress is always useful in proving the appropriateness of an educational program or placement, it was not the hearing officer's obligation to suggest that the hearing be adjourned.

        Petitioner contends that she is entitled to an award of tuition reimbursement for the 1998-99 school year. 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]).

        Respondent has not challenged the hearing officer's determination that it failed to provide an appropriate program for the child for the 1998-99 school year. Therefore, petitioner has 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 parent bears the burden of proof with regard to the appropriateness of the services which the parent obtained for the child at York during the 1998-99 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 child’s psychiatrist testified at the hearing that the child required individualized attention, structure and a low student to teacher ratio. He further testified that the child needed a more rigorous academic program than that offered by Karafin. In his letters to the CSE, the child’s psychiatrist emphasized the need for a more challenging academic program in a behaviorally structured or controlled setting.

        The principal at York testified that York is a mainstream college preparatory school for grades six through 12. He further testified that it had a sizable population of students with learning disabilities, and attention deficit disorders, as well as some students who were classified as emotionally disturbed. The principal stated that the child was one of 12 students in the top-level eighth grade class. With respect to the child's emotional needs, the principal testified that the child's teachers were instructed to create small group activities for the child to participate with other children and to address the child's inappropriate interaction either after class or during a break shortly after the inappropriate behavior occurred. While York did not have a specific behavior modification program in place, the principal noted that there were clear, precise guidelines for student behavior and academic honesty. Further, the principal testified that though counseling was not offered, a school psychologist was available to consult with teachers on an as needed basis. I note that petitioner alleges in her petition that her son received one to two hours of counseling per week from his psychiatrist, in addition to one hour per week of group counseling from a second therapist.

        With respect to academics, the principal indicated that the child’s math class was divided into small groups for activities and instruction, providing an environment for the child to participate. He further indicated that the child used a calculator in math class, and that he was given extended time on tests and for classroom assignments. Additionally, the child’s math teacher was instructed to provide one-on-one assistance to the child after school to work on basic math skills such as multiplication and long division. The principal at York also testified that the child's English teacher was working on building his vocabulary by developing an individualized word list for the child and devising classroom assignments around those words. Additionally, he indicated that computers were available to the students for writing assignments. The principal stated that all students received study skills and organizational instruction ranging from notebook organization and maintenance to recording homework assignments to gathering information from a textbook.

        Based upon the information before me, I find that petitioner has met her burden of proving the appropriateness of the placement she obtained for her son at York. The record shows that the child’s intellectual ability was in the above average to superior range, but that he had relative weaknesses in math, vocabulary, and written language. The record further shows that the child had significant problems with distractibility, organization and managing his moods. Additionally, the record shows that the child responded well to the program at Karafin, which was structured and had a low student to teacher ratio. I find that York offered the child an academically challenging program, which also addressed his academic and organizational weaknesses in a small, structured setting. The fact that York did not provide counseling to the boy is not dispositive of petitioner's claim, since her son received counseling from other sources. Accordingly, I find that petitioner has prevailed with respect to the second criterion for an award of tuition reimbursement.

        The third criterion for an award of tuition reimbursement is whether equitable considerations support petitioner’s claim. There is nothing in the record to suggest that petitioner failed to cooperate with the CSE. There is, however, one other matter to be considered. The reasonableness of the cost of the services which a parent has obtained for a child may also be considered in determining whether equitable considerations support the parent's claim for reimbursement (Florence County School District Four v. Carter by Carter, supra). When the cost of the services which a parent has obtained is excessive, a hearing officer or reviewing officer may properly limit the parent's claim for reimbursement (Application of a Child with a Disability, Appeal No. 97-10).

        Respondent asserts that the sole service provided by York which was appropriate to meet the child's needs was the one-to-one after school tutoring which the private school offered to the child. It contends that petitioner's recovery of her expenditures must be limited to the equivalent of what respondent pays its resource room providers. However, I have found that the educational program which York provided was appropriate to meet the child's needs. Therefore, I must reject respondent's contention. I note that the sum charged by York included a "combined fee" for student insurance, parents association dues and faculty retirement, as well as a "student bank deposit", and an "activity fee". I find that none of these are properly reimbursable. Therefore, I will limit petitioner's recovery to the cost of the child's tuition and his technology and library fee.

 

        THE APPEAL IS SUSTAINED.

 

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

 

        IT IS FURTHER ORDERED that respondent shall reimburse petitioner for her reasonable expenditures for her son's tuition and his technology and library fee at York during 1998-99 school year, upon presentation by petitioner of proof of her payment for her son’s tuition and such fee.

 

Dated: Albany, New York _______________________
September 23, 1999 ROBERT G. BENTLEY