The State Education Department
State Review Officer
Application of a CHILD WITH A DISABILITY, by her 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, Paul Marks, Esq., of counsel
Petitioner appeals from an impartial hearing officer's decision which denied her request for full-tuition reimbursement for the 1998-99 school year, but did order respondent to reimburse her for the cost of certain services which were provided to the child during that year. The appeal must be sustained.
At the outset, I will address petitioner's request that I consider certain evidence which she has annexed to her petition but which was not in the record before the hearing officer. The evidence consists of an education evaluation which was performed on March 17, 1999, a speech/language evaluation also done on March 2, 1999, a report of an observation of the child in her classroom on December 10, 1998, and an updated social history completed on February 4, 1999. The Board of Education asserts that these reports were not considered by its committee on special education (CSE) when it prepared the child's individualized education program (IEP) for the 1998-99 school year. It argues that the appropriateness of the IEP must be determined by what was "objectively reasonable" at the time the IEP was prepared. I disagree with respondent. It is well established that documentary evidence not presented at a hearing may be considered in an appeal from a hearing officer's decision if such evidence was unavailable at the time, or the record would be incomplete without the evidence (Application of a Child with a Disability, Appeal No. 93-20); Application of a Child with a Disability, Appeal No. 95-41; Application of a Child with a Disability, Appeal No. 98-55). The hearing in this proceeding took place on March 23, 1999. While the documents in question predate the hearing, it is not clear from the record when petitioner obtained copies of them. In the interest of fairness, I will accept the documents.
Petitioner's daughter is 13 years old. She was reportedly referred by her parents to the CSE prior to entering kindergarten. The CSE recommended that the child be classified as speech impaired, and receive speech/language therapy. That related service was reportedly provided by respondent while the child attended the Marymount School, which is a private regular education school. The child attended the Marymount School from preschool through the third grade, while receiving speech/language therapy twice per week. She was also privately tutored (Exhibit F).
While in the second grade, the child was privately evaluated by a psychologist, who reportedly diagnosed her as having an attention deficit disorder (ADD). The psychologist referred her to a physician, who prescribed Ritalin for her. She has reportedly been taking Ritalin since 1995 (Exhibit 1). The psychologist evaluated the child again in December, 1995, and January, 1996. She reportedly found that the child had difficulty with visual spatial organization and visual motor integration, as well as deficits in both receptive and expressive language skills.
In the fall of 1996, petitioner asked the CSE to review her child. She also began to explore private school placements for the child. In April, 1996, the CSE recommended that the child receive supplemental instructional services, i.e., resource room services, in addition to speech/language therapy. However, the CSE deleted resource room services from its recommendation at a subsequent meeting in June, 1996. The child's parents rejected the CSE's recommendation, and they unilaterally enrolled her in the Stephen Gaynor School for the 1996-97 school year. They also requested an impartial hearing to obtain an award of tuition reimbursement. In a decision dated April 3, 1997, an impartial hearing officer found that the CSE's recommendation could not be supported for a number of reasons, and that the child's special education needs were being met in the Stephen Gaynor School. She directed respondent to reimburse the child's parents for the cost of the child's tuition at the Stephen Gaynor School for the 1996-97 school year (Exhibit F).
The child remained at the Stephen Gaynor School during the 1997-98 school year. The record does not reveal the reasons for her placement at the school during that school year. In a February, 1998, update of her child's social history, petitioner reported that her daughter had developed greater organizational skills and a sense of responsibility for completing her assignments independently. She indicated that the child was doing well at the private school (Exhibit 1).
A CSE educational evaluator evaluated the child on February 24, 1998. On the Kaufman Test of Educational Achievement, using updated norms, the child achieved a standard score of 87 (19th percentile) for reading decoding, and a standard score of 92 (30th percentile) for reading comprehension. The child also achieved standard scores of 89 (23rd percentile) for math computation, and 80 (9th percentile) for math application. On the Kaufman subtest for spelling, petitioner's daughter achieved a standard score of 87 (19th percentile). The evaluator reviewed a sample of the child's writing, which she assessed to be at a mid-fourth grade level. She noted that the child labored a great deal in completing the tasks required of her, but was cooperative. While cautioning that the results of the evaluation could not be directly compared with those which the child had achieved in February, 1996, the evaluator nevertheless expressed some concern that the gap between the child's expected performance and actual performance appeared to be widening (Exhibit 3). I note that a report of the earlier evaluation is not part of the record.
On March 24, 1998, the child was evaluated by a school psychologist, who reported that she had achieved a verbal IQ score of 81, a performance score of 84, and a full scale IQ score of 81. The school psychologist indicated that the intratest scatter, i.e., the range of scores on the subtests, suggested that the child had a higher potential than was indicated by her IQ scores. The child had great difficulty defining words and perceiving, synthesizing and reproducing abstract designs. Her visual motor integration skills were reported to be delayed by approximately one and one-half years (Exhibit 2).
The school psychologist also observed petitioner's daughter in her classroom at the private school on March 5, 1998. The child interacted well with her teachers and peers, but appeared to be quieter than the latter. The observer noted that there was an immature sense to the child's speech. The child attended to task during the entire class period, which was devoted to handwriting (Exhibit 6).
On May 15, 1998, the child's speech/language skills were assessed using the Clinical Evaluation of Language Fundamentals Third Edition. She received a receptive language score of 75, indicating a moderate delay in her ability to process and understand oral communication. The child achieved an expressive language score of 82, which indicated a mild delay, although the evaluator noted that the child's performance on tests requiring her to formulate and recall sentences was in the moderately delayed range. Her speech articulation and hearing were observed to be within normal limits (Exhibit 4).
The CSE met with petitioner on June 12, 1998 to prepare her daughter's IEP for the 1998-99 school year. It recommended that she remain classified as speech impaired, and that she be educated in regular education sixth grade classes, except for one period per day of resource room services in a group of no more than eight children. I note that while the child's IEP indicates that the size of the group would be no more than three, it was clarified at the hearing that the recommended group size was in fact eight (Transcript, page 63). The CSE also recommended that the child receive 30 minutes of speech/language therapy twice per week in a group of no more than three children. It noted on the IEP that she was taking Ritalin, but did not indicate that the child had ADD. The CSE recommended that time limits on tests be waived, and that the child take tests in a special location. The child's IEP annual goals were to improve her reading, writing, and math skills in the resource room program, and her speech/language skills. In a notice dated June 25, 1998, the child was offered a placement in respondent's J.H.S. 167 (Exhibit 8). Although petitioner subsequently received a notice dated July 23, 1998 indicating that her child was to attend a private school (Exhibit C), that notice was almost immediately cancelled (Exhibit B).
In an end of the school year report, the child's teachers at the Stephen Gaynor School reported that she had made very good academic progress. They indicated that she recognized most words, and could identify the main ideas of the material she read, but needed to work on her ability to draw inferences. She was described as enjoying creative writing, and doing well with it. Although her grammar/punctuation and spelling had improved, the child's teachers indicated that she needed to use care when writing. The child was learning keyboarding skills. She was reported to have excellent work habits and social skills (Exhibit E).
The child's parents did not accept the CSE's recommendations, and re-enrolled her in the Stephen Gaynor School for the 1998-99 school year. They also requested an impartial hearing for the purpose of obtaining an award of tuition reimbursement. By agreement, the hearing was adjourned until March 23, 1999.
On November 5, 1998, the private psychologist who had evaluated the child in 1995 and 1996 completed a re-evaluation of the child (Exhibit A). She reported that the girl had achieved a verbal IQ score of 84, a performance IQ score of 71, and a full scale IQ score of 76. The child's visual motor integration skills were reported to be delayed by three years. On the Woodcock-Johnson Tests of Cognitive Ability, petitioner's daughter achieved standard scores of 97 (43rd percentile) for long-term retrieval, 85 (16th percentile) for short-term memory, 72 (3rd percentile) for processing speed, 75 (5th percentile) for auditory processing, 69 (2nd percentile) for visual processing, 72 (3rd percentile) for comprehension-knowledge, and 81 (10th percentile) for fluid reasoning. The psychologist also assessed the child's educational achievement. On the Wide Range Achievement Test 3, the child achieved a standard score of 100 (50th percentile) for arithmetic. However, her scores on the Keymath Diagnostic Test Revised were lower. She achieved a standard score of 90 (25th percentile) for basic concepts, 86 (18th percentile) for operations, and 76 (5th percentile) for applications. The psychologist reported that deficits in the child's receptive language skills had hampered her performance in math. She reported that the child applied phonics well to decode words, and had a good sight vocabulary. However, reading was a slow process for the child because she did not always comprehend the passages she read. On the Gray Oral Reading Test-3, the child achieved grade equivalent (and percentile) scores of 4.6 (5th) for rate of reading, 5.0 (9th) for accuracy, and 2.9 (5th ) for comprehension. At the time of her evaluation, the child was in the sixth grade. The psychologist reported that the child had written a well-executed story for her, which she judged to be at an 8.4 grade equivalent, except that the child's punctuation and spelling were at or about the fifth grade level. She noted that the child was attentive during the evaluation, but had difficulty remembering a lengthy string of orally presented information. Projective testing did not reveal any difficulty in the child's social and emotional functioning. She diagnosed the child as having an attention deficit with hyperactivity disorder (ADHD) with inattention, as well as a mixed expressive and receptive language disorder. The psychologist recommended that the child remain at the Stephen Gaynor School through the seventh grade (Exhibit A).
In a mid-year report for the 1998-99 school year, the child's teachers estimated that her reading decoding and comprehension skills were at a 3.5 grade equivalent, and that her listening comprehension was at a 3.0 to 3.5 grade equivalent. I note that at the hearing, the child's chief teacher testified that no standardized tests had been given to the child. The child reportedly did not transfer the skills taught to her during spelling lessons to her own writing. Her handwriting was described as neat and legible. The girl's teachers estimated that her math skills were at a 5.5 grade level. While she was reported to have good computational skills, she had trouble applying those skills. She also had trouble retrieving words in her oral language and communication. Her social skills and work habits continued to be good (Exhibit G).
In an educational evaluation which was done for the CSE in February, 1999, the child achieved standard scores of 90 (25th percentile) for letter-word identification, 88 (22nd percentile) for passage comprehension, 89 (22nd percentile) for calculation, and 89 (22nd percentile) for applied problems on the Woodcock Johnson Revised (Exhibit to Petition). The evaluator reported that the child's instructional range for reading ran from 3.6 to 5.8 grade equivalents.
At the hearing in this proceeding, the CSE's representative presented evidence with regard to the appropriateness of the educational program which the CSE had recommended. However, he conceded that he could not prove that the specific placement which respondent had offered would have been appropriate because the needs of the pupils in the resource room at J.H.S. 167 were diverse (Transcript, page 54). The central issue at the hearing was whether the child required a full-time special education program during the 1998-99 school year in order to receive a free appropriate public education (FAPE) under the Individuals with Disabilities Education Act (IDEA). An educational evaluator, school psychologist, and speech/language teacher each opined that petitioner's daughter did not require a full-time special education program. Petitioner and her child's head teacher at the private school testified that in their opinion, the child required a full-time special education program.
The hearing officer rendered his decision on May 20, 1999. 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 ). 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). 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). The hearing officer found that the child was appropriately classified as speech impaired, and that the recommended educational program of resource room services and speech/language therapy would have met the IDEA's standard of appropriateness. However, he found that petitioner had prevailed with respect to the first of three criteria for an award of tuition reimbursement because respondent could not offer a suitable site to the child. I do not review that determination.
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 the Stephen Gaynor School 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 hearing officer found that the services which petitioner had obtained for her child at the Stephen Gaynor School were not appropriate under the IDEA, because the child did not require a full-time special education placement. In view of the fact that the private school had provided speech/language therapy and some resource room services to the child during the 1998-99 school year, and the fact that the parties agreed upon the apparent cost of those services as being $9,600.00 (Transcript, page 109), the hearing officer directed the Board of Education to reimburse petitioner in that amount.
The central issue in this appeal is whether this childs placement in a full-time special education facility like Gaynor during the 1998-99 school year was consistent with the requirement that each child with a disability be educated in the least restrictive environment under the IDEA. The applicability of that requirement to a parental placement has been debated (compare Warren G. et al. v. Cumberland County School District, 190 F. 3d 80 [3d Cir., 1999]; Delullo et al. v. Jefferson County Board of Education, 194 F. 3d 1304 [4th Cir., 1999]). However, I believe that it is appropriate to consider that requirement in determining the appropriateness of the private educational services for which public reimbursement is sought under the IDEA.
While not challenging her child's classification as speech impaired, petitioner asserts that her child has learning difficulties which are secondary to her speech impairment. She relies upon a statement dated March 3, 1999 by the private psychologist, who asserted that there were six "issues" which made a special education placement imperative for the child (Exhibit H). The psychologist reasoned that such a placement was required because of the child's modest cognitive abilities, chronic language disability, deficits in visual-spatial and graphomotor skills, ADD, deficits in social skills, and shyness. She asserted in her statement that the child was at risk for depression and isolation, which the psychologist had observed in the child prior to her placement in the Stephen Gaynor School.
Although petitioners child is classified as speech impaired, it is clear that there are a number of factors which inhibit her ability to benefit from instruction. Her cognitive skills are in the low end of the average range. The childs teacher testified that the girl had trouble with abstract concepts and with inferencing. The childs scores for visual and auditory processing on the Woodcock-Johnson Tests of Cognitive Ability were near the borderline range. In her report of the November, 1998 evaluation, the childs private psychologist indicated that the lags in the childs visual-spatial development made it difficult for her to apply the knowledge which she retains (Exhibit A). Although the childs teacher at Gaynor declined to describe her as distractible, he did testify that the child need to receive instructions orally and in writing, and to have the instructions repeated for her. The child's social skills, reticence, and lack of self-confidence were also discussed at the hearing. Her teacher described her as being fairly withdrawn in the classroom. He asserted that she has to be drawn out, and checked to ensure that she understands what has been presented to her. The teacher opined that the child was not confident enough of her social skills to be able to function in a larger setting (Transcript, page 71) environment. The childs teacher at Gaynor testified that he presented structured lessons to the child, and that she received a certain amount of individual instruction, to ensure that she grasped his instruction. He further testified that the child had progressed academically and socially while in Gaynor during the 1998-99 school year.
Upon the record before me, I find that Gaynor presented an appropriate instructional program to petitioners daughter in a manner which was consistent with the requirement that the child be educated in the least restrictive environment. Therefore, I must annul the hearing officers finding with respect to the second of the three criteria for an award of tuition reimbursement. There is no evidence that petitioner failed to cooperate with the CSE. I find that equitable considerations support petitioners claim for an award of tuition reimbursement.
THE APPEAL IS SUSTAINED.
IT IS ORDERED that the hearing officers decision is hereby annulled;
IT IS FURTHER ORDERED that respondent shall reimburse petitioner for her expenditure for tuition at the Stephen Gaynor School for the 1998-99 school, upon petitioners submission to respondent of proof of those expenditures.
Albany, New York
July 31, 2000
ROBERT G. BENTLEY