The State Education Department
State Review Officer

No. 99-28




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 to Board of Education of the City School District of the City of New York.

Neal Howard Rosenberg, Esq., attorney for petitioner

Hon. Michael D. Hess, Corporation Counsel, attorney for respondent, Isaac Kaufman, Esq., of counsel



        Petitioner appeals from the decision of an impartial hearing officer which denied her request for reimbursement for the total cost of her child’s tuition at the York Preparatory School ("York") for the 1998-99 school year. The hearing officer limited petitioner's recovery of tuition costs because she found that the child did not require a full-time special education program. The hearing officer awarded tuition reimbursement for a supplemental academic program which York provided. Petitioner seeks an award of full tuition reimbursement. Respondent cross-appeals from the hearing officer's decision. It asserts that an award of even partial tuition reimbursement was improper. The appeal must be dismissed. The cross-appeal must also be dismissed.

        At the time of the hearing, petitioner’s child was 14 years old, and was attending York, which is in Manhattan. The child has received special education services since kindergarten (Exhibit 1). He reportedly has an Attention Deficit Disorder (ADD), for which he has been treated with Ritalin since he was nine years old (Exhibit 8). The child is classified learning disabled (Exhibit 2). There is no dispute about the appropriateness of his classification.

        The boy attended P.S. 6 for kindergarten and first grade. While in that school, he received special education instruction in respondent's modified instructional services (MIS-I) program. Petitioner enrolled her son in the Stephen Gaynor School for the second grade. Stephen Gaynor is a private, ungraded school for children with disabilities. It has not been approved to provide such instruction by the State Education Department. The CSE had recommended that the boy remain in the MIS-I program for second grade, and it continued to make that recommendation in subsequent school years. However, the child remained at the Stephen Gaynor School through the 1997-98 school year, at the conclusion of which he aged out of that school.

        In October, 1997, the child was evaluated by Dr. John Wells, a pediatric neurologist, who described the child as having a history of learning disability. Dr. Wells reported that the child exhibited significant anxiety, obsessive concerns, and worries. He changed the form of Ritalin the child was taking, and he recommended neuropsychological testing for the child (Exhibit 8). There is no evidence in the record that the child ever received the recommended testing.

        In any event, the boy's triennial psychological evaluation was conducted on November 5, 1997. The evaluator reported that the child’s speech was unclear and repetition was necessary. The evaluator also had to ask the child to speak louder. On the Stanford-Binet Intelligence Scale, the child achieved scores of 92 for verbal reasoning, 80 for abstract/visual reasoning, 90 for quantitative reasoning, and 95 for short-term memory. His composite score of 88 placed his overall intellectual functioning in the upper end of the low average range, which was a significant decline from previous IQ testing. When administered the Weschler Intelligence Scale for Children – III ("WISC-III") in December, 1994, the child achieved a verbal IQ of 127, performance IQ of 94 and a full-scale IQ of 112. The evaluator who administered the Stanford-Binet Intelligence Scale believed the child had greater potential, but was exhausted during testing. Projective testing indicated that the child had feelings of insecurity, but was unable to express his concerns. The evaluator recommended family therapy (Exhibit B).

        An educational evaluation was conducted on November 20, 1997, when the boy was in the equivalent of the seventh grade at the ungraded Stephen Gaynor School. The evaluator administered the Kaufman Test of Educational Achievement (KTEA), using eighth grade norms for comparison purposes (Exhibit 2). She did so because she assumed the boy was in the eighth grade in view of his age. If seventh grade norms had been used, the boy's percentile scores would have been higher (Transcript, page 30). On the KTEA, the child achieved grade equivalent (and percentile) scores of 12 (84%) for reading decoding, 6.7 (23%) for reading comprehension, 7.5 (34%) for calculations, and 7.8 (39%) for mathematical applications. On the written language portion of the test, the child achieved a grade equivalent score of 10.9 (75%) for spelling. The evaluator indicated that the boy's paragraph structure and grammar were correct, but described his handwriting as being "very poor." The evaluator recommended that the CSE consider the testing modifications of extended time, use of a calculator, and use of a word processor (Exhibit 2).

        On January 16, 1998, a speech/language evaluation was administered to the boy. His receptive language skills were one year below age level, while his expressive language skills were one and one-half years below age level. The evaluator noted that the child had serious problems following directions involving linguistic concepts, but she did not recommend that he receive speech/language therapy for the child (Exhibit 3).

        An occupational therapy evaluation was conducted in February, 1998. The child was underdeveloped in certain areas but displayed compensatory techniques. The evaluator did not recommend any occupational therapy for the boy (Exhibit 4). An observation of the child took place on March 2, 1998. The observer noted that the child’s voice was intelligible, but it had a "slushy" sound. The child was generally able to follow along with the class, and was not distractible (Exhibit 5).

        The Stephen Gaynor School issued a progress report in the middle of the 1997-98 school year. The report indicated that the child's reading, spelling and math skills were at or about the sixth grade level. The child’s writing was described as coming along very nicely. He was reportedly able to use compound sentence structure and was aware of detail and structure. His teacher reported that the boy didn't space properly between words when he printed, but his spacing was better and his work was more legible when he used script. The teacher reported that manual dexterity was an issue for the child, but arts and crafts and typing instruction had helped him to improve. The teacher also noted that the child’s ability to follow written and verbal instruction was improving. He was reported to have good listening skills. The teacher indicated that the child had difficulty finding words and had difficulty with syntax when orally communicating, but he was described as having significantly improved oral language skills. Socially, the child had no difficulties (Exhibit 7).

        The CSE convened on April 30, 1998. It recommended that the child continue to be classified learning disabled. The CSE also recommended that the child be placed in the general education program, and receive resource room services five days per week for one period per day to address weaknesses in writing and reading comprehension. The testing modifications of special location and extended time were also recommended in the child's individualized education program (IEP) for the 1998-99 school year (Exhibit 7). A notice of final recommendation dated June 25, 1998 advised the boy's parents that a placement at J.167 on East 76th Street had been recommended for him (Exhibit 11). Notwithstanding the fact that the CSE had recommended a public school placement and the fact that the child aged out of Stephen Gaynor in June, 1998, the parents received a second letter dated July 24, 1998 indicating that the boy could attend Stephen Gaynor again (Exhibit A). The school district explained at hearing that the letter was sent in error (Transcript, page 8). In September, 1998, the parents enrolled the child in York. The parents subsequently requested an impartial hearing seeking reimbursement of tuition. Their hearing request was reportedly received on November 9, 1998. The hearing was originally scheduled to take place on December 11, 1998, but was adjourned by consent. The hearing took place on February 12, 1999.

        In her decision dated March 22, 1999, the hearing officer noted that the CSE's representative had testified that the proposed resource room class would not have been appropriate for the boy because he would not have been suitably grouped for instructional purposes (See 8 NYCRR 200.6 [f][4]). Therefore, respondent had conceded that it could not show that it had recommended an appropriate placement for the boy. The hearing officer further noted that the boy's classes at York were mainstreamed, and that he had participated in York's "Jump Start" program, for which the boy's parents paid an additional $5,000. The hearing officer found that petitioner's son did not require a full-time special education placement, but that the Jump Start program did meet his special education needs. Therefore, she directed respondent to reimburse the boy's parents for the cost of the tuition for the Jump Start program. Petitioner appeals the decision seeking full tuition reimbursement. Respondent cross-appeals, asserting that petitioner should not have been awarded any tuition reimbursement because petitioner did not meet the notice requirements of the Individuals with Disabilities in Education Act (IDEA).

        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). Respondent concedes that it did not meet its burden of proof with respect to the first of the three criteria for an award of tuition reimbursement.

        The burden of proof shifts to the child's parent with regard to the appropriateness of the services which she 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, petitioner 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).

        In order to determine whether the services which York provided to petitioner's son were appropriate, I must first ascertain what were the child's special education needs. The boy's evaluations revealed that he is of average intelligence, with some weaknesses in his short-term visual memory. He appears to have a slight weakness in his expressive language skills, and possible speech articulation difficulties. However, he reportedly achieved a satisfactory score on a formal test of his speech articulation. The child has appropriate writing skills, but his handwriting is reportedly difficult to read. The psychologist who evaluated him indicated that the boy might have feelings of insecurity, poor self-concept and constriction. Nevertheless, he was described as being highly motivated. Although he reportedly has ADD, that condition appears to be successfully managed with medication. Academically, he is at or above grade level in reading decoding, calculations, mathematical applications, and spelling. His reading comprehension skills are slightly below grade level.

        At York, the boy was enrolled primarily in mainstream classes consisting of 14 students and one teacher. The Principal of York described the school as a mainstream college prep school, with approximately 55 percent of its students classified as either learning disabled or having ADD. Petitioner's son was also enrolled in York's Jump Start program, which the Principal described as a special program for some of York's learning disabled students. The program consisted of a one-half hour study hall in the morning before classes, two periods of one-on-one tutoring per week, and an afternoon study hall of one hour each day (Transcript, page 44). The Principal testified that the program is taught by a special education teacher, who provided instruction in organizational skills, and helped petitioner's son understand what he needs to have for each class. The principal further testified that the child's organizational difficulties affected his reading comprehension by hindering his ability to organize information to draw conclusions and make inferences. The child's Jump Start teacher also worked with his other teachers to have him use graphic organizers in his writing assignments. The Principal also testified that the school had worked on improving the boy's self-advocacy skills. Although the Principal briefly alluded to the use of specialized techniques in the boy's mainstreamed classes, I find that there is insufficient evidence of a general program of specialized instruction at York. I concur with the hearing officer's finding that the services which the child received in the Jump Start program were typical of those provided in respondent's resource program, and that they had addressed the child’s special education needs. Accordingly, I find that petitioner has met her burden of proving the appropriateness of the special education services which she obtained for her son in the Jump Start program at York, but not for a full-time placement in York.

        The third criterion for an award of tuition reimbursement is that equitable considerations support the parent's claim for reimbursement. In its cross-appeal, respondent asserts that petitioner is not entitled to tuition reimbursement because she did not meet the notice requirements of the amended Individuals with Disabilities in Education Act (IDEA). Respondent correctly notes that reimbursement of tuition for a unilateral placement may be reduced or denied if the parents failed to provide written notice, within ten days prior to removal of their child from the public school, of their concerns regarding the IEP and their intent to enroll the child in private school at public expense (20 USC 1412[a][10][C][iii]). I must first note that the child was not in public school, and therefore could not be removed from such school. In any event, the statute upon which respondent relies has an exception when the parent was not notified by the school district of the new requirement of ten days notice before removal. There is no evidence that respondent informed petitioner of the new requirement. Therefore, I decline to apply it (Application of a Child with a Disability, Appeal No. 99-13). The evidence does show that petitioner cooperated with the CSE in developing an appropriate program for the child. I find that equitable considerations support petitioner’s claim for an award of reimbursement for the cost of the special education services provided to her son by York in its Jump Start program.









Dated: Albany, New York __________________________
April 27, 2000 JOSEPH P. FREY