The State Education Department
State Review Officer

No. 99-29




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


Neal Howard Rosenberg, Esq., attorney for petitioner

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



        Petitioners appeal from the decision of an impartial hearing officer which held that the recommendation by respondent's committee on special education (CSE) to declassify petitioners' son was inappropriate because the CSE did not follow proper procedures in determining whether to declassify the child, and the CSE failed to evaluate whether the child needed declassification support services. Nevertheless, the hearing officer declined to award petitioners tuition reimbursement for the 1998-99 school year because she found that the record did not establish that the child was in need of special education services. Instead, the hearing officer ordered the CSE to reconvene for further consideration of the child's needs and to follow procedures required under Federal and State law. Petitioners seek an order granting them an award of tuition reimbursement. The appeal must be dismissed.

        Petitioners' child is 16 years old. At the time of the hearing, he was enrolled in the tenth grade of the York Preparatory School [York] (Exhibit 6). The boy was initially classified as learning disabled in June, 1996. The CSE recommended that the boy receive resource room services and speech/language therapy during the 1996-97 school year (R. 5). However, the boy was placed at respondent's expense in the Stephen Gaynor School, a private school, because of alleged defects in respondent's placement procedure (Transcript, page 6). An educational evaluation was conducted on February 4, 1997, when the boy was attending that school. Although the evaluator indicated that the child was in the sixth grade, I note that other evidence in the record indicates that he was in fact in the eighth grade. On the cognitive ability portion of the Woodcock-Johnson Psycho-Educational Battery (Woodcock-Johnson), the child's test scores ranged from a grade equivalent of 7.4 for oral vocabulary to 14.2 for verbal analogies. On the achievement portion of the Woodcock-Johnson, the child achieved grade equivalent scores of 9.2 for broad reading and 8.1 for broad math. He also achieved grade equivalent scores of 7.0 for writing samples, 5.9 for science, and 7.5 for social studies (Exhibit 2).

        The child was reevaluated in July, 1997. At that time, his classification was changed to speech impaired. The CSE recommended that he receive group speech/language therapy services two times per week during the 1997-98 school year. However, the child attended York at respondent's expense for the 1997-98 school year, again because of a defect in respondent's placement procedure.

        A school psychologist observed the boy in his ninth grade English class at York on May 28, 1998. The class was working on a test review sheet. The review sheet required students to match words and definitions, use words in sentences, and identify parts of speech in written passages. The psychologist reported that petitioners' son asked several questions about the review sheet, and appeared to have difficulty putting words into sentences. The psychologist noted that the boy's classmates also had difficulty completing the review sheet (Exhibit 4).

        The child's social history was updated in July, 1998. One of the boy's parents reported that the 1997-98 school year had gone well at York, and that the boy was functioning independently. However, the parent reported that the child still became distracted in a group, and struggled with language processing and reading comprehension (Exhibit 1). A speech/language evaluation was conducted on July 14, 1998. The evaluator found that the child's hearing was intact, and that his speaking skills were appropriate. He was able to follow two and three-step directions containing linguistic concepts of location, temporal relationships, sequence, and inclusion/exclusion. The child was also able to identify word relationships and formulate complex sentences. The evaluator recommended that the boy not receive speech/language services (Exhibit 8).

        On August 25, 1998, respondent's CSE recommended that petitioners' son be declassified. The CSE's recommendation was included in an individualized education program (IEP) which was based upon the child's social history, educational evaluation, medical history, classroom observation, and speech/language evaluation. No additional evaluation was conducted for purposes of declassification. The CSE did not include a regular education teacher (cf. 20 USC 1414 [d][1][B][ii]), and the IEP did not provide for the provision of declassification support services to the child (see 8 NYCRR 200.4 [c][1][iii]).

        Petitioners disagreed with the CSE's recommendation, and requested an impartial hearing. The hearing was held on February 12, 1999. The hearing officer held that the CSE's recommendation was void because the CSE did not include a regular education teacher, and the CSE did not determine whether it needed to conduct additional evaluations prior to declassifying the child. In addition, the CSE failed to determine whether the child was in need of declassification support services. The hearing officer denied petitioners' request for an award of tuition reimbursement for the 1998-99 school year because she found that the child was not disabled, or in need of special education services.

        Petitioners challenge the hearing officer's conclusion that they are not entitled to an award of tuition reimbursement because their son should no longer be classified as a child with a disability. They assert that the CSE was invalidly composed and that their son's IEP did not include appropriate annual goals and short-term objections. Respondent argues that the hearing officer correctly determined that the boy was not eligible for classification as a child with a disability. Although the Board of Education bears the burden of proving the appropriateness of its CSE's recommendation that a child no longer be classified as a child with a disability (Application of a Child with a Handicapping Condition, Appeal No. 93-32; Application of a Child with a Disability, Appeal No. 98-39), I do not review the hearing officer's decision that the CSE's recommendation to declassify the child was invalid. Petitioners are not aggrieved by that portion of her decision, and respondent has not cross-appealed from it. Having determined that the CSE's recommendation was procedurally flawed, the hearing officer should not have gone on to find that the boy did not meet any of the criteria for classification. The boy had been previously classified as speech impaired. For the purposes of this proceeding, I find that he was speech impaired at the time in question, i.e., the beginning of 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]). 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). As indicated above, the school board failed to meet its burden of proving that its IEP was appropriate. Therefore, petitioners have prevailed with respect to the first of the three criteria 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 questions which I must now consider are what were the boy's special education needs and how were those needs addressed by York during the 1997-98 school year. The record before me is extremely limited. The evaluative data indicates that the boy's cognitive ability was in the average range, and that his educational achievement, as reflected by his standard scores on the Woodcock-Johnson administered to him in 1997 was consistent with his ability. There is no evidence of the boy's more recent academic performance. I note that there is no psychological evaluation in the record. The boy's social history suggests that he formerly had some behavioral difficulties, but that he appeared to have his emotions under control during the 1997-98 school year. The only evaluation directly related to his classification as speech impaired was the August, 1998 speech/language evaluation, which as noted above, indicated that his speech and language skills were satisfactory. Petitioners assert that their son had organizational and attention difficulties which were addressed by York during the 1998-99 school year. I note that there is no evidence of a diagnosis of an attention deficit disorder in the record.

        There is no written report of the boy's educational program or his progress at York during the 1998-99 school year. At the hearing, a York teacher, who did not have personal knowledge of the child but who had talked to his teachers, testified on behalf of petitioners. She asserted that petitioners' son had difficulty retrieving information, organizing ideas, and maintaining attention. The teacher also asserted that the boy had difficulty adjusting to new situations and challenges (Transcript, page 13). She testified that the boy was enrolled in small classes of no more than nine students. Although she briefly indicated that some of York's staff were special educators, the witness did not indicate that the boy was receiving instruction from those individuals. The teacher testified that the school offered the child "such things as graph organizers in writing, exercises in sequencing, classification, organization and formal study skills. She further testified that he had made progress in school in terms of his ability to adjust to change, find answers to questions in written text, and to construct a coherent written essay (Transcript, pages 22-23).

        Upon the record before me, I am constrained to find that petitioners have failed to meet their burden of proof. There is no objective evidence of the boy's special education needs. Although the child was placed in classes with a small student-teacher ratio, I find that the record is inadequate to establish that the child needed to be in such a small class in order to meet his educational needs. While a small class may be an optimal setting for the child, the board of education is not required to compensate parents for optimal private placements (Bd. of Educ. Hendrick Hudson CSD v. Rowley, 458 U.S. 176 [1982]). I find that the parents did not meet their burden of proving the appropriateness of the program at the private school, therefore the parents are not entitled to tuition reimbursement. Because I have found that the parents failed to meet their burden of proving the appropriateness of the private school's services for their son, I do not reach the issue of whether equitable considerations support their claim for reimbursement.






Dated: Albany, New York __________________________
May 17, 2000 ROBERT G. BENTLEY