The State Education Department
State Review Officer

No. 99-68




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

Sonia Mendez-Castro, Esq., attorney for petitioner

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



        Petitioner appeals from an impartial hearing officer’s decision upholding the recommendation by respondent’s committee on special education (CSE) that petitioner’s daughter be placed in one of respondent’s modified instructional services-I (MIS-I) classes for the 1998-99 school year, and denying petitioner’s request for an award of tuition reimbursement for her unilateral placement of the child in the Manhattan Day School. The appeal must be dismissed.

        Petitioner’s daughter is eleven years old. The record does not reveal when she was initially classified as learning disabled by the CSE. At the hearing in this proceeding, the parties stipulated that the child was appropriately classified as learning disabled. I do not review the appropriateness of that classification (Hiller v. Brunswick CSD, 674 F. Supp. 73 [N.D. N.Y. 1987]).

        In a 1997 psychological evaluation, the child was reported to have low average verbal reasoning skills and "borderline" non-verbal reasoning skills. She was also found to have a perceptually based learning disability, with deficits in spatial organization and visual motor skills. The evaluator reported that the child experienced anxiety related to meeting academic demands, resulting in feelings of helplessness and neediness. The child was re-evaluated in March, 1998 by a school psychologist, who administered various projective tests to her. The school psychologist reported that petitioner's daughter was a socially adept youngster who had "free floating anxiety which results from underlying feelings of inadequacy". She indicated that the child employed compensatory behaviors to protect herself from her negative feelings about her limitations. The school psychologist noted that the child was receiving counseling and speech/language therapy during the 1997-98 school year, and indicated that counseling would continue to enable the child to function effectively in a school setting (Exhibit 2).

        The child's educational achievement was also assessed in March, 1998, which was the sixth month of the third grade for her at the Manhattan Day School. She achieved grade equivalent (and standard) scores of 3.2 (92) for broad reading, 3.1 (90) for broad math, 3.1 (93) for dictation, and 3.6 (95) for skills on the Woodcock Johnson Test of Achievement – Revised. The evaluator described the child as being friendly, but anxious. The girl persevered in performing difficult reading tasks, during which she became visibly upset. The evaluator estimated the girl's listening comprehension skills to be at the beginning to mid-third grade level, and her writing skills to be slightly below grade level. She noted that language issues might have affected the girl's performance on tasks designed to measure her comprehension skills (Exhibit 3). The child was observed in third grade classes at the Manhattan Day School in April, 1998 by one of respondent’s school psychologists, who reported that the girl appeared to be attentive and alert, and could answer questions about what she was reading (Exhibit 7).

        In June, 1998, the child's speech/language therapist reported that the child was lagging behind in all of her language based skills. Although the girl had made progress during the 1996-97 school year, the therapist reported that her progress during the 1997-98 school year had been hampered by a late start in the provision of therapy to her. She recommended that the child's therapy be increased from the 1997-98 amount of 30 minutes twice per week to 30 minutes four times per week (Exhibit 4). I note that the child had achieved a receptive language score of 75 and an expressive language score of 94 on the Clinical Evaluation of Language Fundamentals which was administered to her in April, 1998 (Exhibit 5).

        On July 29, 1998, respondent’s CSE prepared the child’s individualized education program (IEP) for the 1998-99 school year. The CSE recommended that the student be placed in a MIS-I class with a 15-1 child to teacher ratio, and receive the related services of speech/language therapy twice per week in a group of three, and once a week individually, and counseling in a maximum group size of three once per week (Exhibit 11). In its written rationale (Exhibit 12), the CSE indicated that the child required a small class to address her academic deficits. On August 11, 1998, the child was offered a placement in P. 251 (Exhibit 13).

        The child’s parents rejected the board’s placement offer, and unilaterally enrolled their daughter at the Manhattan Day School. In a letter to the CSE dated September 28, 1998, petitioner indicated that she had visited the proposed class and found it to be inappropriate. At the hearing in this proceeding, petitioner testified that she objected to the size of the MIS-I class (March 24, 1999 Transcript pp. 128-130). Petitioner also indicated to the CSE that she would request an impartial hearing for the purpose of obtaining an award of tuition reimbursement (Exhibit 14).

        The hearing was scheduled to begin on October 27, 1998, but it was adjourned by consent on more that one occasion. It began on March 10, 1999, and concluded on March 24, 1999. The school psychologist member of the CSE testified the CSE did not recommend a less restrictive environment for the child because she had significant speech and language difficulties. She stated that the CSE also felt a more restrictive program would not be appropriate for the girl because she interacted well with other students, and there was no reason she shouldn’t participate in the general education program. The psychologist explained that the CSE had recommended counseling to help the child address her feelings of inadequacy and to assist her with academics (March 10, 1999 Transcript pp. 15-16).

        The MIS I class in which the CSE proposed that the child be placed was described by the acting site supervisor at P. 251 as a class for children with learning disabilities and speech impairments. He testified that various special education techniques were used in the class, including a multi-sensory teaching style, math manipulatives, a computer, a listening center which allows for reading materials to be transcribed into tapes, and a writing and science center. Additionally the school has a project called "project art" that includes an artist coming to the school to work with all of the students of the school. Other features of the school include a person who teaches chess. The acting supervisor testified he was available to provide one-to-one attention three times per week, and that a crisis intervention teacher was available on Mondays and Tuesdays. He was aware of the IEP developed for the child, and he opined that she would fit into the proposed class (March 10, 1999 Transcript pp. 27-38).

        A profile of the recommended class was presented by the acting site supervisor. There were 11 students in the class between the ages of 9 and 10. The grade level of the students’ reading skills ranged between 2.6 and 4.5, with seven students at the 3.6-4.5 range, and four students at the 3.6-4.5 range. Six students had math skills between 2.6 and 3.5, and the remaining five students’ skills were between 3.6 and 4.5. The students’ communication skills were age appropriate, except for their writing skills. There were nine students with below average writing skills, while two had age-appropriate skills. All of the students had IQs in the average range, and all students in the class participated in regular gym. Nine students received counseling, and 4 students received speech/ language therapy. One student received occupational therapy, and one student had an assistive technology device (FM system) (Exhibit 15). The site supervisor testified that most of the students in the class had some kind of perceptual impairment which influenced their learning ability. Many of the students were mainstreamed for reading and math (March 10, 1999 Transcript pp. 22-37).

        The clinical director of New Horizon Counseling Center, who is a certified social worker, testified that she had been counseling petitioner’s daughter since October, 1998. She opined that the child needed counseling because of her poor self-esteem and feelings that she would be hurt outside of her room or on the street. The witness testified that the child was difficult to focus, restless, and was becoming more difficult to engage in therapy sessions. She believed that the child required a lot of attention, that she would be lost in a large classroom, and that she would require more than one teacher. She further opined that placement of the child in a classroom of 15 students with one teacher would not be enough to meet the child’s needs (March 24, 1999, Transcript pp. 48-49). She did not define what "a large classroom" was, and did not address the appropriateness of a classroom with fewer than fifteen students.

        A private speech/language pathologist testified via telephone that she worked with the girl individually for 45 minutes per week to address her language skill deficits, such as reading and language comprehension, following directions, expressive language and pragmatic and social language skills. She described the child’s reading and abstract reading skills as significantly delayed when compared to children her own age. Her abstract thinking skills in general were described as poor (March 24, 1999 Transcript pp. 52-55). The speech/language pathologist opined that a class of 15 children would be too large for petitioner’s daughter. She stated that the girl needed more of the teacher’s attention than any teacher could logically provide when there were 14 other children in the classroom (March 24, 1999 Transcript pp. 52-56). The witness acknowledged that she had never visited P. 251, nor had she worked with children from a MIS I program. She had no direct knowledge of how the child functioned at the Manhattan Day (March 24, 1999 Transcript pp. 58-60). The witness stated that her services were paid for privately, and were not part of the Manhattan Day School’s program (March 24, 1999 Transcript p. 58). Petitioner testified that she paid for those services.

        The child’s classroom teacher at the Manhattan Day School testified that there were 7 students in the class with two full-time adults, the teacher and an assistant. A student teacher was also assigned to the class. All of the children in the class were approximately 10 years old, and all were functioning below grade level (March 24, 1999 Transcript pp. 64-65). The classroom teacher testified that petitioner’s child got along with the other children, but was immature for her age. She described her as a pleasant, well-behaved student who was eager to please but lacking in confidence. She opined that a class of 15 students and a single teacher would not provide enough individual attention to the child. The teacher explained that the child needed to be redirected or assisted in locating information a few times a day in every subject area (March 24, 1999 Transcript p. 68). However, she also testified that the girl no longer took away from the time she had to spend with other students in the class. She also admitted she had not visited the MIS-I class at P. 251 (March 24, 1999 Transcript p. 69).

        The Director of Special Education at the Manhattan Day School testified that there were 5 self-contained classes in the school. She opined that the child could not function in a classroom where there were 15 students with one teacher. She admitted that she hadn’t visited a public school MIS I class in at least the past two years (March 24, 1999 Transcript pp. 86-92).

        A private psychologist who had observed the child twice in class at the Manhattan Day School testified that she occasionally blurted out comments which were on the general topic but not appropriate to the moment. He described her as being highly impulsive and somewhat hyperactive (March 24, 1999 Transcript p. 99). The psychologist suggested that the child be specifically evaluated for an attention deficit disorder. He opined that the child required the kind of child to teacher ratio the Manhattan Day School provided.

        In her decision which was rendered on June 25, 1999, and corrected on July 1, 1999, the hearing officer noted that a board of education may be required to pay for educational services obtained for a child by the child’s parent if the services offered by the board of education are inadequate or inappropriate, the services selected by the parents are appropriate, and equitable considerations support the parent’s claim (School Committee of Burlington v. Department of Education of 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 parent’s claim for tuition reimbursement (Florence County School District Four v. Carter by Carter, 114 S.Ct. 361 [1993]). She also noted that the board of education bore 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 petitioner’s child could be educated in a self-contained class within a regular school setting. She further found that the emotional issues which were being addressed in the child’s private counseling were not manifested in school, and did not have an impact upon her education. The hearing officer concluded that respondent had met its burden of proving the appropriateness of the recommended MIS-I class at P. 251. She also found that the private school selected by the parent did not provide all of the services which the child needed because petitioner paid separately for speech/language therapy and counseling for her child. Therefore she denied petitioner’s request for an award of tuition reimbursement for the 1998-99 school year.

        Petitioner contends that the hearing officer erred in finding that respondent had offered to provide an appropriate educational program to her daughter. She asserts that the recommended program would not have met her child’s individual needs. Petitioner challenges her daughter’s IEP on the grounds that it allegedly failed to identify the child’s educational needs, and that its annual goals and short-term objectives were deficient.

        An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the child’s needs, establishes annual goals and short-term objectives which are related to the child’s educational deficits, and provides for the use of appropriate special education services to address the child’s special education needs (Application of a Child with a Disability, Appeal No. 93-9; Application of a Child with a Disability, Appeal No. 93-12). Upon my review of the record, I find that the IEP accurately reflected the results of the child’s evaluations, and identified her needs. Petitioner asserts that the IEP did not identify the child’s need for individual instruction. I find that there is no reason why the IEP should have indicated such a need. In doing so, I have carefully considered the testimony by the child’s teacher at the Manhattan Day School and by petitioner’s other witnesses. I note that neither of the two IEPs prepared by the Manhattan Day School during the preceding school year indicated that the child needed individual instruction (Exhibits 8 and 9). I am not persuaded by the teacher’s description of the child’s need to be refocused and assisted a few times a day in each subject that she in fact required individual instruction. I have also considered the private psychologist’s suggestion that the child be evaluated to ascertain if she has an attention deficit disorder. While that might be useful, I cannot conclude on the record before me that the girl’s IEP did not accurately identify her needs.

        The Individuals with Disabilities Education Act (IDEA), as amended in 1997, provides that a child’s IEP must include " a statement of measurable annual goals, including benchmarks or short-term objectives, related to (I) meeting the child’s needs that result from the child’s disability to enable the child to be involved in and progress in the regular curriculum; and (II) meeting each of the child’s other educational needs that result from the child’s disability " (20 USC 1414 [d][1][a]). Having reviewed the child's IEP goals, I find that they were too general, e.g., "will increase auditory processing skills", to provide meaningful guidance to the teachers who would be required to implement the IEP (Application of a Child with a Disability, Appeal No. 93-43). However, each goal was accompanied by short-term objectives which included measurable standards, and mastery dates within the one-year period of the goals. I find they provided the necessary specificity (Application of a Child with a Disability, Appeal No. 99-6). I further find that the goals and objectives are reasonably related to the child’s educational needs.

        I also find that the CSE recommended an appropriate set of special education services to address this child’s special education needs. The child’s educational achievement scores did not indicate that she had substantial academic delays. However, both parties appear to believe that she required placement in a self-contained class to address her management and processing needs. Respondent was required to offer the child an appropriate placement in the least restrictive environment (34 CFR 300.550 [b]; 8 NYCRR 200.6 [a] [1]). Its CSE recommended a self-contained class with a 15-1 child to adult ratio. Petitioner contends that her daughter required a lower child to adult ratio. While I recognize that the child has apparently made progress while in classes having a lower child to adult ratio at the Manhattan Day School during the last few years, it does not follow that she would be unable to make satisfactory progress in a class with a 15-1 ratio, as the CSE has proposed.

        As part of its burden of proving the appropriateness of the placement recommended by its CSE, respondent must show that the child would have been grouped for instructional purposes with students having similar needs (8 NYCRR 200.6 [g] [3]). Having reviewed the class profile submitted by respondent, as well as the testimony by the acting site supervisor, I find that respondent demonstrated that the child would have been suitably grouped for instructional purposes in the MIS-I class at P. 251.

        I find that respondent has met its burden of proving that it had offered to provide an appropriate educational program and placement to petitioner’s daughter during the 1998-99 school year. Accordingly, I find that petitioner is not entitled to an award of tuition reimbursement.






Dated: Albany, New York __________________________
November 1, 2000 JOSEPH P. FREY