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
Neal Howard Rosenberg, Esq., attorney for petitioner
Hon. Michael D. Hess, Corporation Counsel, attorney for respondent, Blanche Greenfield,
Esq., of counsel
Petitioner appeals from the decision of an impartial hearing officer which denied petitioner reimbursement for the cost of her child's tuition at the Corlears School (Corlears) for the 1998-99 school year. She also seeks reimbursement for the costs she incurred for her childs transportation to the private school. The appeal must be sustained in part.
The child was six years old at the time of the hearing. He was born with a cleft palate. He has speech, auditory processing, and developmental delays (Exhibit SD-9). When the child was five years old, he attended preschool at the Riverside Weekday School (Riverside) (Exhibit SD-13). Riverside is affiliated with the Cooke Foundation, which is a non-profit organization that provides educational and related services to children with special needs. The Cooke Foundation places children in various facilities. The child was placed in Corlears, which is affiliated with the Cooke Foundation, for kindergarten (R. 49, 50). I note that Corlears is a regular education elementary school which has not been approved by the State Education Department to provide special education to children with disabilities.
When evaluated by a psychologist in May, 1997, the child achieved a verbal reasoning score of 73, which was in the slow learner range. His score of 93 for abstract/visual reasoning was in the average range. In quantitative reasoning, the child achieved a score of 84, which was in the low average range. His score of 71 for short-term memory was in the slow learner range. The child achieved a composite score of 76, which was also in the slow learner range. The evaluator opined that the results should be viewed with caution because of the child's age, his varying attentiveness, and his receptive and expressive language delays. The psychologist also reported that the childs visual-motor integration skills were mildly delayed. (Exhibit SD-2).
In June, 1997, the child was classified as speech impaired by respondents committee on special education (CSE). The CSE recommended that the child be placed in respondents modified instructional services-IV (MIS-IV) program, and receive speech/language therapy and counseling. The childs parents rejected the CSEs recommendation, and he remained at Riverside. During the 1997-98 school year, he was in a preschool inclusion class with fourteen students at Riverside. He had a full-time aide, and the support of a consultant teacher once a week. He received speech/language services twice per week in school, and twice per week at home. The boy also engaged in play therapy once per week, with the goal of becoming more assertive with his peers (Exhibit SD-1). In January, 1998, the childs special education consultant teacher reported that the child had made remarkable progress in his expressive and receptive language skills, and that he was accepted socially. She indicated that his speech intelligibility was improving, and that he routinely used full sentences. The teacher noted that the child was working with a computer program at home to improve his phonetic awareness, and was to begin another program during the summer. (Exhibit SD-13). The information sheet for school admission, dated January 27, 1998, indicated that the child had leadership qualities that enabled him to attract other children (Exhibit SD-6).
An educational evaluation was conducted on February 27, 1998. On the Woodcock-Johnson Psycho-Educational Battery-Revised, the child achieved a standard score of 101 in reading, which placed him in the fifty-second percentile. He achieved a standard score of 106 in writing, placing him in the sixty-sixth percentile. In math, the child achieved a standard score of 79, placing him in the eighth percentile. The child had emergent reading and writing skills, which was average for a child his age. His computation and applied problem solving skills were below average, but his grasp of quantitative concepts was average for his age (Exhibit SD-3).
In February, 1998 when the child was five years and four months old, he achieved scores of three years and three months for auditory comprehension, and two years and nine months for expressive communication on the Preschool Language Scale. His speech/language therapist reported that the child was easily distracted during group sessions, but had made gradual, steady progress towards achieving his speech/language goals. She noted that the boy had displayed regression after school breaks, and that he learned best by the continuous repetition of concepts. She recommended that he receive a twelve-month program of individual speech/language services three times per week, and small group speech services twice per week, during the 1998-99 school year (Exhibit SD-4).
In February, 1998, a Cooke school psychologist reported that the child was good natured and eager to develop social relationships, and that he had responded well to his counseling session. She further reported that his social-emotional development appeared to be inhibited by delays in his receptive and expressive language (Exhibit SD-8). In March, 1998, the childs physician reported that the child was very social, and he opined that the child's continued development depended on verbal interaction with other children. He recommended an inclusion setting for him. (Exhibit SD-5). The child's hearing was tested in March, 1998. He passed the pure-tone hearing screening, but he did not want to participate in the middle ear function screening. The evaluator recommended the removal of wax from both ears, and a repeat screening at Teachers' College (Exhibit SD-7).
On the Brigance Inventory of Early Development which was administered in May, 1998, the child's receptive communication and expressive communication skills were found to be in the 3.8-4.3 and 3.5-4.0 age ranges, respectively. The child's reading, basic math, and fine motor skills and behaviors were reported to be in the 5.0-5.5 age range. In general knowledge and comprehension, the child's age range was 4.5-5.0. His gross motor skills were determined to be in an age range of 5.6-6.0. The child's social/emotional development and self-help skills were in the age ranges of 5.5-6.0 and 4.5-5.0, respectively. The boy was 5.7 years old in May, 1998, and he was reported to be meeting most of the goals and objectives developed for him by the Cooke Foundation (Exhibit P-C).
On July 17, 1998, the CSE recommended that the child remain classified as speech impaired, and be placed in one of respondents "K +" classes. The K + program was not in operation when the CSE made its recommendation, but it was to be in operation for the 1998-99 school year (R 77). It has been described as an integrated kindergarten class, i.e., a class in which some children with disabilities are educated with their regular education peers. The recommended class was to have a student-teacher ratio of 12:1:1. The CSE also recommended that the boy receive counseling twice per week for thirty minutes in a maximum group of three, speech/language services twice per week for thirty minutes in a maximum group of two, and individual speech/language services twice per week for thirty minutes (Exhibit SD-10). Upon leaving the CSE meeting, the childs parent was handed the first page of the Individualized Education Plan (IEP), which indicated that the recommended program was a kindergarten-plus integrated program (R. 74). The parent testified that she felt the IEP was "fine" (R. 89).
The parent unsuccessfully attempted to contact the school on July 23, July 31, and August 3 to obtain additional information regarding the recommended placement. The family went on vacation in August, and returned immediately prior to the start of school (R. 78). On July 30, 1998, the assistant chairperson of the CSE sent a profile of the recommended class to the parent in accordance with her request. Five students had been placed in the class, including petitioner's child. The cover letter indicated that additional students were expected to be placed in "the MIS IV program" prior to the beginning of the school year (Exhibit SD-10). At the time of the hearing, six students were in the recommended placement (Exhibit SD-15). The profile revealed that the class size: staffing ratio for special education students was 12:1:1. The class size: staffing ratio for the general education students was 15:1. The profile also indicated that the service category was an integrated kindergarten class (Exhibit SD-10). On August 3, 1998, the CSE sent a final notice of recommendation to the parent. The final notice of recommendation did not indicate that an inclusion program was recommended. Instead, the notice sent to the parent indicated that the MIS-IV program had been recommended (Exhibit SD-12). The parent understood the MIS-IV program to be a class segregated from the rest of the school population (R. 78, 79).
Petitioner placed her child through the Cooke Foundation at Corlears for the 1998-99 school year. She testified that she placed the child at Corlears because she had not had the opportunity to visit the public placement, and the final notice of recommendation indicated that the placement was segregated rather than inclusionary (R. 78, 79). In addition, the parent felt the public school was too large for her child (R. 80, 81).
Petitioner apparently requested an impartial hearing in October, 1998 (Hearing Officer's Decision). After two adjournments, the hearing took place on March 31, 1999. In a decision dated June 10, 1999, the hearing officer concluded that the Board of Education had met its burden of proving the appropriateness of its program. The hearing officer found that the Board of Education's inclusion kindergarten program contained all the features that both the parent and the Board of Education agreed were important for the child. It had a small, structured class with an intensive student-teacher ratio and appropriate peer models. The hearing officer further found that the Board of Education had sufficiently apprised the parent of the type of program it was recommending. The hearing officer was not persuaded by the parent's contention that she was confused about which program was recommended, and found that the parent had intended to place the child in a private school regardless of the program recommended by the Board of Education.
Petitioner challenges the hearing officer's determination. She contends that there was no evidence that the CSE had considered a classroom observation in making its recommendation for the child's placement for the 1998-99 school year. I must note that State regulation requires that the CSE perform a classroom observation as part of a child's initial evaluation, but there is no requirement for an annual observation (8 NYCRR 200.4 [b]  [viii]). Petitioner's son was initially evaluated by the CSE for the 1997-98 school year. The CSE meeting in July, 1998 was an annual review for which no classroom observation was required. While one of respondent's witnesses was questioned about whether an observation has ever been performed, the witness testified that she did not have the child's complete records with her (R. 40). I cannot conclude that an observation had never been performed.
Petitioner presents two further contentions. Petitioner alleges that the recommended placement in P.S. 163 would have been inappropriate for her son because it is a large, noisy setting which would have hindered her son's ability to learn. Petitioner also alleges that the program indicated on the Final Notice of Recommendation was different than the program described at the CSE meeting, causing her to be confused about the actual recommended program. 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). 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).
Petitioner does not challenge the provisions of her sons IEP. I have nevertheless reviewed the IEP to ascertain whether it accurately identified the childs special education needs, and whether it included appropriate annual goals which are based upon those needs. I find that the IEP satisfies both requirements. The next question is whether the IEP would have provided appropriate special education and related services for the child. I note that there appears to be no dispute about the recommended related services. There also appears to be no dispute that an inclusion placement in which the child received the special education instructional service he required in a setting which included regular education peers was appropriate. The K+ class which the CSE recommended for the boy was an inclusion class consisting of no more than 12 special education students and 15 regular education students. The class was staffed with one special education teacher, an assistant, and a general education teacher (Exhibit SD-10). The hearing officer correctly described the recommended program as being similar to the program at Corlears. Although petitioner testified that she was concerned about the size of the building in which the program was housed, petitioner presented no evidence that the child could not learn in a small classroom located in a large building, nor did petitioner express concern about the size of the building at the CSE meeting in July. I find that respondent has met its burden of proving that it had offered to provide an appropriate educational program to the boy in the K+ class during the 1998-99 school year.
Petitioner contends that she was not adequately apprised of the proposed placement. Petitioner received the class profile and the Final Notice of Recommendation over the summer. She expressed confusion about the proposed placement because both the cover letter accompanying the class profile and the Final Notice of Recommendation indicated that the program was an MIS-IV placement. Petitioner correctly understood an MIS-IV program to be segregated from the general education population. However, the class profile indicated that the recommended program was in an inclusion class (Exhibit SD-16). In addition, petitioner testified that she understood the recommended program to be in an inclusion class as it was described at the CSE meeting in July (R. 88). Petitioner stated that she unsuccessfully attempted three times to contact the school regarding her confusion (R. 78). Petitioner did not, however, attempt to call the telephone number of the CSE clearly indicated at the bottom of the cover letter. Petitioner enrolled her child in a private placement in September, 1998 and did not request an impartial hearing until October, 1998. She did not contact P.S.163 or the CSE at the beginning of the school year. I find that petitioner was not misled with regard to the recommended placement. Because I have found that the Board of Education met its burden of proving the appropriateness of the proposed program, I need not address the second and third criteria necessary to award tuition reimbursement.
Petitioner seeks reimbursement for costs she incurred transporting her child to private school. The Board of Education is required to provide suitable transportation up to a distance of fifty miles to and from a nonpublic school for any student identified by the CSE as being a student with a handicapping condition, if the child attends the nonpublic school for the purpose of receiving special education services similar to those recommended by the CSE (Section 4402[d][a] of the Education Law). Petitioner's unrebutted testimony is that the only transportation offered her child was a small bus with sixteen and seventeen-year-old passengers. The driver of the bus indicated that it would be inappropriate for petitioner's child to ride for an hour with these older students. Petitioner and her husband chose to bring the child to and from school on the subway (R. 84, 85). Because the transportation offered petitioner's child was not suitable for a child of his age, I find that petitioner is entitled to reimbursement of the cost of transporting her child to and from the nonpublic school he attended during the 1998-99 school year.
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that respondent shall reimburse petitioner for the cost of her expenses in transporting her child to and from school during the 1998-99 school year.
Albany, New York
September 22, 2000
ROBERT G. BENTLEY