The State Education Department
State Review Officer
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 of the City of New York
Sonia Mendez Castro, Esq., attorney for petitioner
Hon. Michael D. Hess, Corporation Counsel, attorney for respondent, Martha Calhoun, Esq., of counsel
Petitioner appeals from the decision of an impartial hearing officer which denied petitioner tuition reimbursement for the cost of her sons tuition at the Yeshiva Gesher Yehuda (Gesher), for the 1998-99 school year. Gesher is a private school in Brooklyn that serves special education students. It is not on the state approved list of private special education providers. The appeal must be sustained.
The child was eight years old at the time of the hearing. The child was first referred to the committee on preschool special education by his mother in September, 1993, because of problems with his speech. The child attended the Ozar Early Childhood Center, and received occupational therapy and physical therapy as related services. He was subsequently enrolled in a center-based preschool program. In March, 1995, the child was classified as speech impaired by respondents committee on special education (CSE). The CSE recommended that the child receive speech/language therapy while attending P.S. 238. However, petitioner chose instead to send the child to Gesher at her own expense (R. 12).
While in kindergarten at Gesher, the child reportedly displayed many impulsive behaviors and compulsive behaviors which impeded his learning. He was unable to print any letters or numbers as of March, 1996 (Exhibit P-Q). The child was held over in kindergarten. During the 1996-97 school year, he was placed in a self-contained kindergarten class. He reportedly displayed attention deficits, impulsiveness, and compulsive behavior in that class. His academic performance was reported to be 1-1½ years below his age level. The childs teacher recommended that he continue in a self-contained class, and also continue to receive speech/language therapy. She also recommended occupational therapy for him (Exhibit P-N, P-R). He began to receive that therapy in January, 1997.
By the end of the school year, the child had reportedly made gains socially and emotionally. His compulsive behavior decreased. However, he continued to display frustration when he perceived a task to be difficult, and he required a significant amount of prompting to complete a task (Exhibit P-P). A CSE review was held in June, 1997. The CSE recommended that the child be placed at P.S. 153. The parent chose to send the child once again to Gesher, at her expense (R. 12).
The child's triennial evaluation was conducted during the 1997-98 school year. The child was receiving occupational therapy once a week and speech/language therapy twice a week. Teachers reported that he was fidgety and would often become frustrated. In an update of her sons social history, the parent reported that the child's handwriting and speech had improved, but she expressed her belief that the child should continue to receive related services. The child reportedly had previously been taking Paxil, but his medication had been changed to Prozac (Exhibit SD-10). In a December, 1997 report, the child was described by his teacher as restless and distractible. She also stated that he became easily frustrated in his efforts, and would often fail to finish things. However, he did not have temper outbursts or quick mood changes. (Exhibit P-H).
In January, 1998, the childs triennial psychological evaluation was administered. On the Wechsler Intelligence Scale for Children - Third Edition (WISC-III), the child achieved a verbal IQ score of 100, a performance IQ score of 74, and a full scale IQ score of 86. Those results were consistent with previous test results. The evaluator noted that the 26 point disparity between the child's verbal and performance scores was statistically significant. He reported that the child exhibited more impulsive behavior and tended to have lower frustration tolerance on visual tasks than on verbal tasks. On the Bender-Gestalt Visual Motor Test, the child exhibited approximately a two-year delay in expected perceptual motor integration development. The evaluator described the child as friendly and likable, but prone to admit defeat very quickly when academically challenged. The evaluator also noted that the child frequently sought adult support and intervention (Exhibit SD-11). The child's teacher at Gesher maintained a behavior rating scale for the child. By January, 1998, the child's behavior had steadily improved. On a scale of one to ten, however, the child still did not achieve any score higher than a five (Exhibit P-J).
An educational evaluation was conducted in February, 1998. The evaluator found the child to be friendly and cooperative. Although the child was willing to attempt all tasks, he did not persevere at them. The child exhibited difficulties in the visual-motor area as well as in most academic areas. The child's ability to decode words was at a 1.1 grade equivalent. His listening comprehension was at a 1.0 grade equivalent. On the Beery Visual Motor Integration Exam, the child manifested a delay of approximately two years. He had particular difficulty with directionality, integration and numeration (Exhibit SD-12).
An educational evaluator observed the boy working individually with his teacher on February 12, 1998, as part of the childs triennial evaluation. The evaluator reported that the boy performed well and responded positively to praise and encouragement, but he required significant refocusing to complete his work (Exhibit SD-13). In March, 1998, the childs teacher at Gesher reported that he exhibited compulsive tendencies, and was constantly concerned with the neatness and cleanliness of his things. The teacher also stated that the child was highly distractible, and had poor frustration tolerance. She reported that the child displayed more frustration as the work became increasingly more difficult. The child reportedly did not use phonetic analysis to help him decode reading words. He could count to twenty-nine, and add numbers up to 10. The child had difficulty with subtraction (Exhibit SD-14, P-K, P-M).
The CSE met on March 2, 1998 to develop an Individualized Education Program (IEP) for the child (Exhibit SD-7). In attendance were the school social worker, school psychologist, educational evaluator, speech/language evaluator, CSE parent member, and the child's parent (Exhibit SD-9). The child's teacher at Gesher participated by phone (Exhibit SD-7). The CSE recommended that the child be classified as learning disabled. It also recommended that he be enrolled in a special class with a student-teacher ratio of 15:1 in respondents modified instructional services-I (MIS-I) program. The boys IEP included a testing modification of double the regular time limits. Related services included speech/language therapy twice a week for thirty minutes in a group of no more that five children, and individual occupational therapy once a week for thirty minutes. I note that the CSE apparently rejected the recommendation by the childs occupational therapist to increase occupational therapy from once a week to twice a week. The IEP indicated that the child took Prozac daily for a hyperactivity disorder. The IEP included annual goals and short-term objectives which addressed academic areas, speech/language and occupational therapy. The IEP did not contain any behavioral goals or objectives (Exhibit SD-7).
On March 10, 1998, petitioner was offered a placement for her son at P.S. 95 in Brooklyn (Exhibit SD-3). Petitioner advised the CSE that she did not want a public school placement for the child, but she did want respondent to provide related services to the child (Ibid.). She informed the CSE that although she was placing her child in a private school, she did wish to be apprised of all future review meetings that might be scheduled (Exhibit SD-17). On May 20, 1998, petitioner entered into a contract with Gesher to pay $18,000 in tuition for the 1998-99 school year (Exhibit P-A).
By letter dated July 26, 1998, petitioner asserted that Geshers tuition had been raised to an unmanageable amount, and asked respondents placement officer for permission to observe different public school placements to determine which would be most appropriate for her child. She indicated that her son had recently started a daily regimen of Ritalin to help him cope with an Attention Deficit Disorder (ADD), and an Obsessive Compulsive Disorder (Exhibit SD-6).
In July, the CSE sent the parent a new notice of placement informing her that the recommended placement had been changed to P.S. 121 in Brooklyn. The parent was asked to sign the form indicating that she understood the change (Exhibit SD-2). A second notice of placement was sent to petitioner on August 12, 1998. She was again asked to acknowledge the change of placement to P.S. 121 (Exhibit SD-1). Petitioner responded by letter dated August 14, 1998, indicating that she had previously returned a signed notice of recommended placement. She again requested that she be permitted to explore different options within the public school system, although she stated a preference for Gesher (Exhibit SD-5). By letter dated August 27, 1998, petitioner advised the placement officer of the Board of Education that she and her son wanted to examine P.S. 121 before deciding upon an actual placement (Exhibit SD-4).
On September 20, 1998, petitioner observed what she was told was the class which had been recommended for her son. That class had 13 students and one teacher. At the hearing, petitioner opined that the class was too large for her child. She asserted that the childs psychiatrist and psychologist both felt that the child needed a smaller class (Transcript Vol. 2, pp. 8, 9). The class the parent observed was not, in fact, the class which had been recommended for him. The recommended class had only ten students at the time of the hearing, although it could have had as many as 15 students (Vol. 2, pp. 35, 36).
At petitioners request, a hearing was held on February 2, 1999 and April 27, 1999. The purpose of the hearing was to obtain an award of tuition reimbursement for her sons attendance at Gesher during the 1998-99 school year. In his decision which was rendered on May 20, 1999, the hearing officer noted that the childs classification as learning disabled was not in dispute. He found that the child had academic and speech/language deficiencies which could not be appropriately addressed in a regular education class. The hearing officer further found that those deficiencies, as well as the boys behavioral needs, could be addressed in the recommended MIS-I class at P.S. 121. He therefore denied petitioners request for an award of tuition reimbursement.
Petitioner contends that the hearing officer erred in finding that respondent had demonstrated that it had offered to provide an appropriate educational program to her son. 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 ), and that the recommended program is the least restrictive environment for the child (34 CFR 300.550 [b]; 8 NYCRR 200.6[a]). An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the child's needs, provides for the use of appropriate special education services to address the child's special education needs, and establishes annual goals and short-term instructional objectives which are related to the child's educational deficits (Application of a Child with a Disability, Appeal No. 93-9; Application of a Child with a Disability, Appeal No. 93-12).
I am constrained to find that the Board of Education did not demonstrate that it would have offered an appropriate educational program for the child. Petitioners son has reportedly been diagnosed as having an Attention Deficit Disorder and Obsessive Compulsive Disorder. However, the Board of Education produced no medical evaluation of the child. The child's medical history form contained no mention of the child's diagnoses, or the medications which he had been taking (Exhibit P-X). The evidence showed that the child had great difficulty controlling his impulsive and compulsive behaviors. However, the IEP which the CSE prepared for him did not include any annual goals or short-term objectives to address his behavioral needs, nor did the IEP include a behavioral modification plan.
The hearing officer found that the child's teacher would have been able to develop an appropriate behavior modification plan for the child. It is the CSEs responsibility to prepare a behavioral modification plan as a component of the childs IEP (Application of a Child with a Disability, Appeal No. 97-26). Only after the CSE has described a childs needs and selected the services which are need to address those needs, may it determine the childs placement. It may not select a placement and assume that the childs teacher will be able to address all of the childs needs. In view of the CSEs failure to adequately determine this boys needs and to prepare an appropriate IEP for him, I find that respondent did not meet its burden of proof with respect to the appropriateness of the proposed program and placement.
The child's parent bears the burden of proof with regard to the appropriateness of the services which she obtained for her son at Gesher 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 evidence shows that Gesher is a school serving disabled children. The class the child attended at Gesher had ten students, whose ages ranged from seven to nine. One student was not classified. Four students were classified as learning disabled, including one student who was also classified as speech impaired. Two other students were classified as speech impaired. Two students were classified as emotionally disturbed, and one student was classified as traumatic brain injured. Eight students received speech therapy. Five students received occupational therapy, and one student received physical therapy. One student received counseling. Eight students had low average intellectual functioning, and two had average intellectual functioning. All but one student had below average ability in auditory processing. Five students had below average ability in verbal expression, and five students had average ability in verbal expression. All but one student had below average writing skills. Eight students were at a pre-primer reading level. Two students were at the primer reading level. Eight students were at a second grade level in math. One student was at a K.5 math level, one student was at a 1.5 math level, and the remaining students were at a second grade math level. All but one child needed a small, structured class, with a social skills program and a behavior modification program (Exhibit P-W). I find that the boy was suitably grouped for instruction in his class at Gesher.
Most of the children, including petitioner's child, were at a pre-primer reading level. At the hearing, the Board of Education argued that the boy's reading level was proof that the child had regressed at Gesher. It relied upon the fact that he was found to be reading at a 1.3 grade level in respondent's February, 1998 educational evaluation and had been expected to read at a 1.9 grade level by May, 1998. His teacher at Gesher stated that the child had regressed over the summer, and she had to re-teach him when he returned in September, 1998 (Vol. 2, p. 63). She stated that, at the time of the hearing, the child was reading at about a first grade level, but she acknowledged that he had problems with comprehension. She testified that the child spent most of his time concentrating on decoding, and this hurt his ability to comprehend the material. The teacher also testified that the child worked on reading for about 100 minutes per day (Vol. 2, p. 68). Although I understand the concern by the Board of Education, I accept the teacher's testimony that the child is reading at about a first grade level. I find that the child's reading difficulties have been identified at Gesher, and they are being addressed. I also find that the IEP developed at Gesher addresses the child's behavioral needs. I find that petitioner met her burden of proving that Gesher is an appropriate educational placement for the child.
I find that equitable considerations support tuition reimbursement. Although the evidence clearly shows that the parent did not consider the public school placement until tuition at Gesher became unreasonably high for her, the parent had nevertheless been cooperative with the CSE. The evidence shows that the parent sought to be continuously apprised of CSE meetings, and she attended CSE meetings. The parent observed the public school placement at the beginning of the 1998-99 school year in her consideration of that placement. I find that the parent has been cooperative with the CSE and equitable considerations warrant tuition reimbursement.
THE APPEAL IS SUSTAINED.
IT IS ORDERED that the decision of the hearing officer is hereby annulled; and
IT IS FURTHER ORDERED that respondent shall reimburse petitioner for the cost of her child's tuition at Gesher during the 1998-99 school year, upon petitioner's presentation of proof of payment of such tuition.
Albany, New York
August 28, 2000
JOSEPH P. FREY