The State Education Department
State Review Officer

No. 99-80




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 Huntington Union Free School District

Pamela Phillips Tucker, Esq., attorney for petitioner

Ehrlich, Frazer & Feldman, attorney for respondent, Jacob S. Feldman, Esq., of counsel



        Petitioner appeals from an impartial hearing officer's decision denying tuition reimbursement for the cost of his child's tuition at The Forman School (Forman) for the 1997-98 school year. Respondent cross-appeals from that part of the hearing officer's decision that found the school district's program to be inappropriate. The appeal must be dismissed. The cross-appeal must also be dismissed.

        At the conclusion of the hearing, the child was sixteen years old and in the tenth grade at Forman. Forman is not included on the New York State list of approved schools for disabled children. The child began experiencing difficulties in preschool, from which he was withdrawn because he was reported to be "too physical." After delaying the boy’s entrance into kindergarten for one year, petitioners enrolled him in a private kindergarten. The child attended a parochial school for the first and second grades. In October, 1990, the principal of that school referred the boy, who was in the second grade, to respondent’s committee on special education (CSE) because he was having difficulty paying attention in class, and had difficulty with tracking, copying, reading and writing skills (Exhibit P-F).

        In his psychological evaluation, the child achieved a verbal IQ score of 103, a performance IQ score of 90, and a full scale IQ score of 96. On the Wide Range Achievement Test (WRAT), the child achieved a reading score in the second percentile, a spelling score in the fifth percentile, and a math score in the seventh percentile. The CSE classified the child as learning disabled. He has remained classified as learning disabled. The boy’s classification is not in dispute in this appeal.

        The CSE recommended that the boy receive resource room service (Exhibit P-A). The child began attending public school for the third grade in the 1991-92 school year. He reportedly continued to receive one period of resource room services per day in the subsequent school years (Exhibits P-J and AA). In a psychological evaluation conducted in 1994, the child achieved a verbal IQ score of 89, a performance IQ score of 89, and a full scale IQ score of 87. On the Weschler Individual Achievement Test (WIAT), he achieved standard scores of 84 for basic reading, 90 for spelling, 82 for numerical operations, 122 for oral expression and 69 for written expression.

        The boy’s next triennial psychological evaluation was performed in January, 1997, when he was in the eighth grade. Respondent’s school psychologist reported that the child had achieved a verbal IQ score of 78, a performance IQ score of 79, and a full scale IQ score of 77. The child also evidenced weakness during a test of his visual perceptual skills, which the psychologist attributed to the child’s poor memory skills. On the WIAT, the child achieved standard scores of 81 for basic reading, 85 for mathematics reasoning, 72 for spelling, 86 for reading comprehension, 79 for numerical operations, 84 for listening operations, 88 for oral expression and 69 for written expression. The psychologist noted that there had been a significant decline in the child’s cognitive scores since 1990, and reported that such declines were usually the result of either a traumatic physical injury or emotional distress. He opined that a variety of emotional issues, cumulatively experienced, were having an impact upon the boy’s ability to function in social, academic and family settings. He noted that the child's regular education and resource room teachers had suggested that the boy’s needs might be more adequately addressed in small special education classes than in a resource room program, and he recommended that the CSE review the boy’s entire file (Exhibit P-A).

        In February, 1997, a private psychologist who had been consulted about the child opined that the child’s resource room program was inadequate to meet his needs. The private psychologist suggested that the child be placed in a setting with smaller classes and more individual attention and structure (Exhibit P-AA). The psychologist recommended that the child be placed in a smaller classroom setting, which he believed to be unavailable in a public school (Exhibit P-A). About the same time of the psychological evaluation, the child’s uncle sent a character reference to Forman as part of the school’s admission process (Exhibit SD-44).

        On March 18, 1997, the CSE convened to review the student’s educational program. The boy’s teacher reported that the boy had failed four major subjects during the second marking period (Exhibits SD-1, P-D). While in the seventh grade during the previous year, he had also failed English and social studies (Exhibit P-C). The resource room teacher attributed the child’s poor academic performance to his failure to complete homework, failure to complete his notebook/journal, inconsistent effort, and talking in class. The child was described as being verbally confrontational, and having the tendency to blame others when he did not complete his work (Exhibit SD-1). The CSE recommended a change in the boy’s schedule for the remainder of the 1996-97 school year to accommodate two additional inclusion classes and additional period of resource room services. The term "inclusion class" in respondent’s district refers to a regular education class of on more that 25 students, five of whom are special education students. A special education teacher works in the classroom with the special education students. The CSE also recommended that psychiatric and neurological evaluations be performed. It agreed to consider recommending counseling after receipt of those evaluations (Exhibit SD-1). The boy’s mother agreed to have his revised educational program be implemented.

        A neurological evaluation was conducted on May 8, 1997. The doctor reported a diagnostic impression of "probable attention deficit disorder by history, with no other evidence of neurological dysfunction." He recommended a trial of Ritalin for the boy (Exhibit SD-4). The record does not reveal whether a psychiatric evaluation was performed.

        The CSE reconvened on May 12, 1997. It recommended that the boy be considered for extended classes in social studies and English, and that he be exempted from the foreign language requirement (Exhibit SD-6). The term "extended class" refers to a regular education class in which the curriculum is covered over an extended period of time. On June 20, 1997, the CSE conducted its annual review. The child’s mother participated in the review by speakerphone. The boy’s special education teacher reported that his grades and attitude had improved since March. She also reported that he had stated that he would be going to a different school during the 1997-98 school year.

        The CSE recommended that the boy be placed in inclusion classes for general science, Regents level global studies, Regents level English, and math in respondent’s high school, with resource room services (Exhibits SD-5 and 6). Although the meeting minutes indicated that the resource program would be continued, the boy’s individualized education program (IEP) failed to identify the amount of resource room services which were provided during the 1996-97 school year or were recommended for the 1997-98 school year (cf. 8 NYCRR 200.4 [c][2][x]). He was apparently receiving two periods of resource room per day as a result of the CSE’s March 18, 1997 recommendation. The CSE also recommended that he receive 40 minutes of individual counseling ten times per year. Test modifications included time extended to double time, questions and directions read, special location, and the use of a calculator with fractions. The CSE continued to recommend exemption from foreign language. The CSE chair testified at the hearing that the recommendation of an inclusion science class was an error. She stated that the child would have been placed in a science class that was extended over three semesters instead of two (Transcript p. 153). The remainder of the child's academic courses met seven periods per week rather than five periods per week (Transcript pp. 173-174).

        Petitioner’s son failed eighth grade English and social studies. His English teacher reported that the boy did practically no work, while his social studies teacher indicated that the child had tried hard but found the subject to be difficult (Exhibit P-D). The boy achieved a C in science, and a C- in math.

        Both parents agreed to the program recommended by the CSE (Exhibits SD-7, SD-8). Petitioner testified that he did so because he believed that the CSE might change his child's classification to emotionally disturbed if he had not agreed (Transcript pp. 1259-1270). The CSE chairperson disputed the father’s testimony (Transcript, p 1485). Petitioner further testified that he informed clerical staff in the school district's office in June, 1997 that his child would be attending Forman in September. Petitioner acknowledged that he did not provide this information in writing to the school district (Transcript p. 1276).

        The child was enrolled as a residential student in Forman in September, 1997. Forman was described as a college preparatory regular education school for children with learning differences or difficulties. It is located in Litchfield, Connecticut. Most of the students at Forman reportedly have language-based learning disabilities, and many have difficulties with written expression (Transcript p. 738). A typical class at Forman was described as having six or seven students (Transcript p. 748). At the time of the hearing, only three teachers at Forman possessed certification in special education (Transcript p. 803). None of the child’s teachers possessed special education certification (Transcript pp. 846, 849, 895, and 909).

        Initial academic reports from Forman indicated that the boy had failed to turn in assignments, and was inattentive or disruptive in certain classes (Exhibits SD- 26 and 27). The child began making progress toward the end of his first term. He was commended for making a greater effort to complete his math and English homework (Exhibits P-N and O). His math teacher noted, however, that the child occasionally had difficulty focusing. In October and December, the child received academic accolades in geography. His teacher indicated that the child had shown improved effort, improved attitude and a willingness to seek help (Exhibits SD-29, SD-35, P-O, P-P). The child's language training teacher reported that the child had an impressive first term (Exhibit P-Q). The child received final term grades of 61 for geography, 71 for English, 85 for math, and 95 for language training (Exhibits SD-35, P-N, P-S, P-Q).

        The child began to experience some difficulties during the second term, although he continued to perform well in language training. His teachers reported that he had failed to complete assignments, was inattentive, tardy, and had accumulated absences. He also had difficulty with organization was merely and consistency (Exhibits SD-30, SD-31, SD-32, SD-33). The child's math teacher asserted that the boy was producing the minimum amount of work to pass, and that he was easily distracted and tended to distract other students (Exhibit SD-24). On April 7, 1998, the child's study hall proctor reported that the child was the "most chronic" in the dorm "in terms of being non-studious during the quiet hours." The proctor further reported that the child said that he needed an individual tutor every night or he would be unable to complete his homework. The proctor recommended that the child be placed in a different study hall (Exhibit SD-38).

        Academic concern reports issued at mid-April indicated that the child rarely sought extra help, inconsistently completed his assignments, was inattentive, unprepared, tardy, put forth an insufficient effort, and his performance and attitude had declined (Exhibits SD-22, SD-25). On May 11, 1998, Forman advised petitioner that the child would receive a failing grade in science because of four unexcused absences (Exhibit SD-40). On May 27, 1998, the boy was informed that he would also fail math for the term because of his four unexcused absences (Exhibit SD-42).

        On May 21, 1998, the child was observed at Forman by his former resource room teacher and respondent’s CSE chairperson. The teacher reported that petitioner’s son chatted with another student and did not participate in the lesson during a science class. When he was called upon, the boy had responded inappropriately. In a "learning support class", the boy dictated to a teacher who typed his thoughts for him. The observer reported that the child was the most socially appropriate male student she saw at Forman. She questioned the availability of appropriate socialization for him. The CSE chairperson reported that the boy told her his work for the math class was easy because it was the same work he had done in the seventh and eighth grades (Exhibits SD-50, SD-51).

        The boy’s final grades for the 1997-98 school year were 70 for geography, 80 for human development, 66 for science, 72 for English, 93 for language training, and C for math (Exhibits SD-22, Sd-23, SD-34, P-T, P-Y, P-Z). His human development teacher commented that the child had contributed positively to class discussions, but needed to improve his commitment to completing homework (Exhibit SD-34). The science teacher commented that the boy had begun to take his studies more seriously (Exhibit P-T). The child’s English teacher commented that the child’s effort had improved throughout the term, and that he had taken advantage of extra credit opportunities (Exhibit P-Y). The child’s language training teacher reported that the child’s academic self-esteem improved a great deal over the year (Exhibit P-Z). In math, the child’s greatest difficulty was reported to be focusing, as well as coming to Saturday classes and getting to early classes on time. The teacher did report that he had noticed steady improvement in his classroom behavior and ability to remain focused (Exhibit SD-23).

        By letter dated April 1, 1998, petitioner’s attorney requested an impartial hearing to obtain an award of tuition reimbursement (Exhibit IHO-1). The impartial hearing was held over the course of twelve days between June 10, 1998 and April 21, 1999. The hearing officer rendered his decision on August 3, 1999. He found that the school district had failed to meet its burden of proof with regard to the appropriateness of its recommended program. Although the extended courses which the CSE had recommend for petitioner’s son were intended for students who had previously had academic difficulty, the hearing officer was unpersuaded that they were appropriate for the boy. He noted that they were Regents level courses. The hearing officer further found that Forman was an inappropriate placement for the child because it was not the least restrictive environment for the child. He held that nothing in the record indicated that the child needed a residential placement or, that if he did, the only school that could meet his needs was Forman. Finally, the hearing officer found that equitable considerations did not favor the parents because the school district was not informed of their dissatisfaction with the CSE’s recommended program until April of the school year in question.

        I will first consider respondent’s cross-appeal because if respondent prevails, petitioner’s appeal will be moot. Respondent contends that the hearing officer erroneously premised his determination that respondent had not met its burden of proof upon a finding that the recommended program did not have a "track record". While there is some justification for respondent’s complaint about the hearing officer’s reasoning, I find that there are other reasons for upholding his determination.

        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 [1982]), and that the recommended program is the least restrictive environment for the child (34 CFR 300.550 [b]; 8 NYCRR 200.6[a][1]). 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 find that the boy’s IEP reflects the results of his evaluations, and identifies his special education needs. The boy’s academic skills are well below average. However, his primary weaknesses are in organization and motivation to follow through with assignments. As noted in his IEP, the boy required a structured approach to encourage organization and completion of independent work. Unfortunately, the special education services which the CSE recommended for the child would not, in my judgment, have provided the structure the boy needed in order to succeed in school. Given his past performance in the district’s junior high school, it should have been readily apparent to the CSE that the boy would require more "hands on" management, either in the form of an individual aide and/or case manager to ensure that assignments were completed, or a special class placement, while in respondent’s high school. I am aware that his parents were opposed to a special class placement, but that does not relieve the CSE of its responsibility to recommend and appropriate program. Accordingly, I find that the Board of Education’s cross-appeal must be dismissed.

        I now turn to petitioner’s appeal. 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 [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 parents' claim for tuition reimbursement (Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7[1993]). I have determined that respondent did not meet its burden of proof with regard to the appropriateness of its program.

        Petitioner bears the burden of proof with regard to the appropriateness of the services which he obtained for the child at Forman during the 1997-98 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).

        I cannot find that the parent met his burden of proving that Forman was an appropriate placement for his son. Although the child received some positive reports from Forman, it is readily apparent from the various progress reports that the child did not receive the structure and support he required. As noted above, he failed two of his academic courses during the spring semester because of unexcused absences even though he was a residential student of the school. The boy received poor grades while a student with the district primarily because he had difficulty completing homework assignments, his effort was inconsistent, he talked in class and he did not complete his notebook/journal. Similarly, the boy's teachers at Forman reported that he frequently failed to complete assignments, his effort was inconsistent, and he talked in class. Although the child received passing final grades, I note that there is no objective evidence of academic progress, as standardized test results, in the record. Since I find that petitioner has not demonstrated the appropriateness of Forman's program, I find that his argument with respect to the least restrictive environment is moot.

        Although it is unnecessary for me to address equitable considerations, I note that equities do not favor petitioner. Petitioner failed to inform the CSE of his dissatisfaction with the CSE's recommended placement. Although petitioner testified that he was unhappy with the proposed placement, he first informed the CSE of his dissatisfaction in April, 1998, upon requesting tuition reimbursement. I do not find that petitioner was cooperative with the CSE. Equitable considerations do not favor tuition reimbursement.







Dated: Albany, New York __________________________
December 15, 2000 FRANK MUŅOZ