The State Education Department
State Review Officer

No. 99-71



Application of a CHILD WITH A DISABILITY, by her 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 H. Rosenberg, Esq., attorney for the petitioners

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



        Petitioners appeal from an impartial hearing officer’s decision which denied their request for tuition reimbursement for the cost of their daughter’s tuition at the Mary McDowell Center for Learning (Mary McDowell) for the 1998-1999 school year. The hearing officer found that respondent’s committee on special education (CSE) had recommended an appropriate educational placement for petitioners’ daughter in one of respondent’s modified instructional services-I (MIS-I) classes. The appeal must be dismissed.

        At the outset, I note that petitioners argue that the hearing officer's decision must be set aside because she failed to recognize that McDowell was their daughter's pendency placement by virtue of the fact that an impartial hearing officer had previously found the private school to be an appropriate placement for the child during the 1997-98 school year. Respondent argues that the prior hearing officer's decision regarding the parents' claim for tuition reimbursement for the 1997-98 school year did not create a pendency placement at McDowell. I agree with respondent (Application of a Child with a Disability, Appeal No. 96-83). Although the Federal regulations were amended in May, 1999 to provide that a State Review Officer's decision in a tuition reimbursement case can change a child's pendency, the new regulation does not apply to an impartial hearing officer's decision (Application of a Child with a Disability, Appeal No. 99-66).

        Petitioners’ daughter was ten years old and in the fourth grade at Mary McDowell at the time of the hearing. The child has been classified as learning disabled by the CSE. There is no dispute about her classification, which I do not review (Hiller v. Bd. of Ed. Brunswick CSD, 674 F. Supp. 73 [N.D. N.Y., 1987]). The child has been described as a bright and personable youngster with learning problems in the areas of reading, writing, and spelling (February 22, 1999 Transcript pp. 8-9).

        The child was initially referred to the CSE when she was in the second grade at the Packer Collegiate Institute because she was having difficulty meeting the academic expectations of that school. The CSE’s recommendations for the child were reportedly delayed. Her parents unilaterally enrolled her in Mary McDowell, and requested an impartial hearing. At the hearing, respondent conceded that it had not made a timely offer of placement. The hearing officer in that proceeding found, with "some reservations", that Mary McDowell was an appropriate placement, and awarded petitioners tuition reimbursement for the 1997-98 school year.

        When evaluated in March, 1998, she was found to be cognitively functioning in the superior range. However, the CSE psychologist noted that the girl appeared to have difficulty holding information and performing mental operations using that information. She further noted that the child’s concentration and effort waned over time. Despite a cheerful outward appearance, the girl manifested notable anxiety and emotional reactivity. The psychologist expressed concern about the child’s overly sexualized internal life and the rawness of her emotional reactions (Exhibit 4).

        In an educational assessment performed on April 5, 1998, the child was found to have above average listening comprehension and oral expression skills. However, her written expression and spelling skills were below average. She achieved standard scores of 75 for the former, and 82 for the latter. The child achieved grade equivalent (and standard) scores of 2.0 (82) for basic reading, 2.9 (93) for reading comprehension, 4.6 (115) for numerical operations, and 4.6 (112) for mathematical reasoning on the Wechsler Individual Achievement Test (Exhibit 6).

        Occupational therapy and speech/language therapy evaluations were also performed in April, 1998. The evaluators concluded that the child did not manifest any disability requiring occupational therapy, and that she had generally adequate speech/language skills. However, she manifested some weakness in syntactic language. The speech/language evaluator recommended that the child receive two sessions of group speech/language therapy per week to focus upon verbal expression in reading class (Exhibit 8).

        On May 11, 1998, the CSE recommended that petitioners’ child be enrolled in a MIS-I class with a 15:1 child to adult ratio, and that she receive 30 minutes of group speech/language therapy twice per week and 30 minutes of counseling in a group of no more that three once per week (Exhibits 1 and 2). On the child’s individualized education program (IEP), the CSE indicated that the child would be mainstreamed as determined at the school. A final notice of recommendation indicating P.S. 154 in Brooklyn as the intended site of the child’s placement was issued by the CSE on May 19, 1998 (Exhibit 13).

        Petitioners rejected the CSE’s placement offer on November 10, 1998, and requested an impartial due process hearing. A hearing was held on December 12, 1998, February 22, 1999, and April 26, 1999. The hearing officer's decision was rendered on July 11, 1999. The hearing officer found that the recommended MIS-I placement would have offered the child a small, structured learning environment which would have been appropriate for her. She further found that petitioners’ daughter would have been appropriately grouped for instructional purposes with the other children in the MIS-I class. She concluded that respondent had met its burden of proof that it had offered an appropriate placement to the child for the 1999-2000 school year, and denied petitioners’ claim for an award of tuition reimbursement.

        Over the objection of petitioners' counsel, the hearing officer allowed the CSE representative to offer an opening statement summarizing the CSE's position. Petitioners assert that representative's statement was in the nature of a closing statement, and should not have been allowed by the hearing officer. I must note that opening statements are not evidence, and that the hearing officer was required to base his decision on the record (8 NYCRR 200.5 [c][11]). The hearing officer also allowed the petitioners' attorney the opportunity to make an opening statement. I find that there is no merit to petitioners’ claim of procedural unfairness.

        Petitioners challenge the appropriateness of the recommended MIS-I placement on the grounds that the CSE allegedly failed to comprehend the seriousness of their child’s emotional difficulties. They contend that the CSE school psychologist failed to adequately evaluate the child in March, 1998. I note that the school psychologist did not do a full assessment of the child’s cognitive skills because such an assessment had been done in February, 1997 (Exhibit 5). Instead the school psychologist selected certain IQ subtests to be administered. Those subtests corresponded to the areas in which the child’s performance had been the weakest in the 1997 evaluation. They were selected in order to assess the impact of her emotional difficulties. The school psychologist also administered the Rorschach Inkblot Test and the Thematic Apperception Test to assess the nature and extent of the child’s emotional condition. Petitioners offer no expert opinion to dispute the validity of the approach taken by the school psychologist. I find that there is no basis in the record to conclude that the CSE inadequately evaluated the child.

        Although a child’s emotional state must always be considered regardless of the child’s classification, I must note that this child’s primary disability has been identified as a specific learning disability. By definition, a specific learning disability does not include learning problems which are primarily the result of emotional disturbance (8 NYCRR 200.1 [mm]). Petitioners agree that their daughter is properly classified as learning disabled. I have reviewed the entire record, and I find that the CSE properly took into account the child’s feelings and emotional condition when it made its recommendation (Transcript, p. 59). It also accurately reported the results of her psychological evaluations in her IEP.

        Petitioners do not challenge the appropriateness of their child’s IEP annual goals and short-term objectives, which I have nevertheless reviewed because they are an essential element of an appropriate educational program for a child with a disability. Having reviewed the goals and objectives, I find that they were appropriate for this child.

        In order to meet its burden of proof, respondent must show that its CSE prepared an IEP which not only accurately identified the child’s special education needs and included appropriate goals and objectives, but also recommended appropriate special education services to address those needs (Application of a Child with a Disability, Appeal No. 93-9; Application of a Child with a Disability, Appeal No. 93-12). Petitioners challenge the adequacy of the recommended services. In essence, petitioners contend that their daughter is too vulnerable and emotionally fragile to be placed in a mainstream setting such as P.S. 154. They assert that the child had already experienced failure in a regular education setting when she attended the Packer Collegiate Institute. I must note that there is insufficient information in the record about the child’s experience at that school to afford a basis for concluding that she could not attend a public school. I must also note that respondent is required to place each child in the least restrictive environment (34 CFR 300. 550 [b]; 8 NYCRR 200.6 [a] [1]).

        The initial question is whether the child required primary special education on a full-time basis. Petitioners contend that she did, and that the CSE envisioned something less than full-time special education. They point to the girl’s IEP, which indicated that the extent to which the child might be mainstreamed at P.S. 154 would be determined at the school. A CSE is required to indicate the extent to which a child will participate in regular education on the child’s IEP (8 NYCRR 200.4[c][2][iv]). It may not delegate its duty to do so to anyone (Application of a Child with a Disability, Appeal No. 93-12). While this is a defect in the child’s IEP, it does not follow that respondent has failed to meet its burden of proof. It is clear from the testimony of the educational evaluator member of the CSE that prepared the IEP that the CSE did not contemplate any immediate mainstreaming for the child (Transcript, p. 64). Instead, it envisioned that she might ultimately be successfully mainstreamed for subjects in which she had strong skills and interests. I cannot say on the record before me that it would have been inappropriate at any time during the 1998-99 school year for the child to be mainstreamed in at least one subject, such as mathematics. Therefore, I will remind the CSE of its duty to be specific when indicating on a child’s IEP the extent to which a child is to be mainstreamed, but I will not invalidate this child’s IEP.

        A detailed description of the placement recommended by the CSE was offered through the testimony of the special education site supervisor at P.S. 154. She described P.S. 154 (the Winsor School) as having about 450 students in grades pre-K through fifth grade. She noted the school was a Lincoln Center focused school, and was affiliated with Brooklyn College Center for Educational Change. The site supervisor testified that there was a single MIS-I class at P.S. 154, taught by an experienced special education teacher. There were six children in the class, which had a ceiling of eleven children. All of the children were of at least average intelligence, but all of them were below grade level in reading. Four of the children were below grade level in mathematics. They were also below grade level in writing. The class was located in a small classroom. Artists from the Lincoln Center came into the class, and there was a resident artist from the Lincoln Center. The class paired with a general education class twice a week when the artist was present. Students used a computer lab for a double period once a week. The room had a PowerMac, as well as two keyboards, for children who had difficulty with handwriting. Speech services, counseling services, and occupational therapy services were on site, and a crisis teacher was available for other duties such as supervision and co-teaching as needed (Transcript 89-94).

        A profile of the MIS-I class was prepared on January 8, 1999 (Exhibit 17). It showed a class range of 0.5 to 3.5 for reading and 1.6 to 4.5 for math. The IEP developed for the petitioners' child on May 11, 1998 reported her math score at 4.6 and her reading at 2.3. In reading, she would have been in the middle of the range for the proposed class. However, she would have exceeded the three-year range (see 8 NYCRR 200.6 [g][7]) in math by one month. Petitioners allege that it was error for the hearing officer to fail to consider the discrepancy from the three-year (3) functional achievement level. They assert that the description of the proposed classroom was taken in January 1999, while the scores reported on their child’s IEP were based on evaluations performed in the Spring of 1998, and they argue that the disparity between their daughter’s performance in math and the level of the children in the MIS-I class would have been even greater.

        Section 200.6 (g)(7) of the Regulations of the Commissioner of Education does not preclude the grouping of children in a classroom when the range of achievement levels in reading and math would exceed three years. It requires the school district to provide the CSE, the parents, and the teacher of students in the class with a description of the range of achievement and general levels of social and physical development and management needs in the class by November 1 of that school year. In addition, the parent of each student entering that class after November 1 must be provided a description of the class and offered the opportunity to discuss the description with an appropriate representative of the district. I find the discrepancy beyond three years as described here to be minimal, and I further find that it does not afford a basis for concluding that the child would not have been suitably grouped for instructional purposes in the MIS-I class (Application of a Child with a Disability, Appeal No. 96-20).

        A board of education may be required to pay for educational services obtained for a student by the student’s parents, if the services offered by the board of education were inadequate or inappropriate, the services obtained 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]). I find, as did the hearing officer, that respondent has met its burden of proof with regard to the appropriateness of the educational placement which it offered to provide to petitioners’ child for the 1998-99 school year. In this matter, the CSE developed an IEP and made a placement recommendation that afforded the child a free appropriate public education in the least restrictive environment.





Dated: Albany, New York __________________________
December 14, 2000 JOSEPH P. FREY