The State Education Department
State Review Officer

No. 99-92




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 Seaford Union Free School District

Long Island Advocates, Inc., attorney for petitioners, Christina M. Duffner, Esq., of counsel

Ingerman Smith, L.L.P., attorneys for respondent, Christopher Venator, 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 Variety Pre-Schooler’s Workshop (Variety) for the 1998-99 school year. The appeal must be dismissed.

        Petitioners’ daughter was six years old and was repeating kindergarten at Variety at the time of the hearing. Variety is a private school in Syosset, New York. It has been approved by the New York State Education Department to provide education to children with disabilities, and serves children in preschool through the first grade. Petitioners’ child has been diagnosed as having dysfunctional frontal lobe atrophy. She was initially evaluated by the Hicksville Public Schools at the age of three. A social history completed on October 24, 1995, by the Hicksville social worker indicated that the child was referred for the evaluation due to concerns regarding regression in speech/language development and toileting (Exhibit 4). The child’s mother advised the social worker that her daughter had some slight balance and fine motor difficulties. In January, 1996, the child began attending Variety for preschool. She continued to attend Variety for preschool the following year.

        In April, 1997 when the child was four years old, the child was evaluated by a psychologist, reportedly for the committee on preschool special education (CPSE) (Exhibit 9). The psychologist indicated that the child’s functioning was significantly impeded by global developmental delays, which included cognitive deficits, as well as delays in her motor coordination, language and preschool skills. She described the girl as a very anxious child, and noted that the child had marked difficulty relating to her during the evaluation. On the Bayley Scales of Infant Development, the child’s overall performance was at the 22-month age level. However, the psychologist cautioned that the child’s score was a minimal estimate of her abilities due to interfering behaviors. Although the Bayley Scales are not normed for four year olds, the psychologist opined that they could be used to evaluate this child, given her level of abilities. On the Vineland Adaptive Behavior Scales (Vineland), completed by the child’s preschool teacher, the child attained an adaptive behavior composite within the low range, having achieved a one year and eight month age level. The child’s Vineland scores indicated that she had marked delays in her communication, daily living skills, socialization and motor domains. The psychologist recommended that the child be placed in a small, structured, special education program with related services.

        The child became old enough to attend kindergarten during the 1997-98 school year, and passed from the jurisdiction of respondent’s CPSE to its committee on special education (CSE). The CSE reportedly recommended that the child be placed for kindergarten in one of respondent’s schools. Petitioners did not accept the CSE’s recommendation. They elected to keep their daughter at Variety for kindergarten, at their expense, during the 1997-98 school year (Transcript, pp. 325-326). Petitioners did not seek review of the CSE’s recommendation.

        In a January 14, 1998 occupational therapy re-evaluation, the child exhibited severe delays in her fine motor, visual-perceptual motor and self-help skills, and continued to display sensory processing and attention difficulties. The therapist recommended that the child continue to receive occupational therapy twice per week for 30 minutes. In a speech/language re-evaluation conducted on February 25, 1998, the child achieved age equivalent scores of 2-6 for auditory comprehension and 1-11 for expressive communication on the Preschool Language Scale-3 (Exhibit 6). Her total age equivalent score on the test was 2-4. The speech/language pathologist indicated that the child had made some progress. However, the child’s receptive language skills were moderately delayed for vocabulary, and severely delayed for understanding basic concepts and following complex directives. The speech/language pathologist also indicated that that the child’s expressive language skills were severely delayed. She reported that the child communicated using a communication book, combined with picture symbols, simple words, verbal approximations, gestures and eye contact. The speech/language pathologist further reported that the child exhibited immature play skills, but that her attending skills had increased and her self-directed behaviors had decreased. Additionally, the speech/language pathologist reported that the child’s oral motor skills were delayed, and her feeding skills were not age appropriate. She recommended that the child continue to receive individual speech/language therapy five times per week.

        In a March, 1998 physical therapy re-evaluation, the physical therapist reported that the child’s ability to perform therapist directed activities had improved significantly (Exhibit 7). She assessed the child’s gross motor skills to be at approximately the three to three and one-half year level with scattered skills up to the four and one-half year level. The physical therapist recommended that the child continue to receive physical therapy twice per week for 30 minutes. Variety recommended in March, 1998 that the child be placed in a full day, 12-month, highly structured program for the 1998-99 school year (Exhibit 10).

        Respondent’s CSE began its annual review of the child on April 8, 1998. The review was completed on June 1, 1998, when the CSE prepared the child’s individualized education program (IEP) for the 1998-99 school year. The CSE recommended that the child be classified as speech impaired, and that she be placed in a 10-month communication disorder class, referred to as an ungraded primary-I (UP-I) class, with a student:staff ratio of 8:1:1 at the Seaford Manor School (Exhibit 16). The CSE also recommended that the child receive speech/language therapy, occupational therapy, and physical therapy. The minutes from that meeting indicate that the CSE recommended that the child attend a Board of Cooperative Educational Services of Nassau County (BOCES) program for the summer, and that it would develop a separate IEP for the child for her summer program (Exhibit 15). The minutes also note that the child’s mother expressed concern about her daughter being adequately supervised in the recommended 10-month program and being able to successfully transition to it from a BOCES summer program.

        On June 16, 1998 a psychologist at the BOCES program at the Fern Place Elementary School screened the child, who was unable to separate from her mother and was extremely distressed during the screening (Exhibit 21). The child vocalized her distress, but did not utter any intelligible words. The psychologist attempted several tests to assess the child’s skills, but could not obtain any scores because of the child’s non-compliant behavior and severe communication and social deficits. She determined that the BOCES elementary program at the Fern Place School was not appropriate for the child, and recommended that the child be evaluated for placement at another BOCES program. Three days later, a BOCES administrator advised the CSE that the BOCES was unable to provide a suitable educational program for the child during the 1998-99 school year (Exhibit 22).

        The CSE reconvened on June 23, 1998 to determine the child’s summer program. The minutes from that meeting reflect that the CSE recommended that the child attend Variety for the summer of 1998, and then transition to the Seaford Manor UP-I program (Exhibits 23 and 24). It further recommended that the child receive speech/language, occupational and physical therapy at her summer program.

        The child was privately evaluated by a psychologist at her mother’s request in July, 1998, when she was six years old (Exhibit 30). The child was tested on four separate occasions, and was accompanied by a teacher during each testing session to ease her difficulties with attention and transitions. The child scored in the first percentile on the subtests attempted on the McCarthy Scales of Childrens’s Abilities. The private psychologist estimated the child’s IQ to be in the moderately retarded range, which was corroborated by her scores on the Vineland previously completed by the child’s teacher and mother. On a test of auditory processing, the child was unable to attend to task long enough to be evaluated. The private psychologist reported that the child’s attention was severely compromised as she was only able to sustain attention for approximately 10 minutes despite a great deal of encouragement and structure. Her attention span was even less when there was any type of distraction. The private psychologist also reported that it was difficult to assess the child’s memory functions due to her attention difficulties. In addition, the private psychologist reported that the child’s visual discrimination, perceptual, constructional and cognition skills were impaired. The child also demonstrated some difficulty with gross motor movements, and her fine motor functioning was impaired. She was able to identify letters of the alphabet, colors and shapes of objects, numbers on the calendar, and days of the week, and could recognize names of the children in her class. The private psychologist recommended that the child remain in a classroom with a minimal student: teacher ratio, and that she receive intensive language remediation, social and life skills training, and occupational therapy. She suggested that the child could benefit from medication to address her attentional difficulties.

        On August 3, 1998, petitioners notified the CSE that they did not accept its recommendation for their child’s educational program for the 1998-99 school year, and requested an impartial hearing (Exhibit 28). Petitioners chose to keep their daughter at Variety for the 1998-99 school year, and seek an award of tuition reimbursement. The hearing in this proceeding began on November 2, 1998. It continued on various dates, and ended on July 9, 1999.

        The hearing officer rendered his decision on October 27, 1999. He found that the child’s needs would have been met in the UP-I program recommended by the CSE. He rejected petitioners’ contentions that their child required a 1:1 aide, and that respondent could not provide a "distraction free" site for the girl’s physical therapy and occupational therapy. He also dismissed petitioners’ claim that the recommended program was inappropriate because their child would have to make two transitions within a three-month period. Having concluded that respondent had offered an appropriate educational placement and program to the child for the 1998-99 school year, the hearing officer denied petitioners’ request for tuition reimbursement.

        Petitioners appeal from the hearing officer’s decision on a number of grounds. They argue that the UP-I program was not appropriate because their daughter required a distraction-free environment for physical therapy and occupational therapy which respondent could not provide. Additionally, they argue that that respondent’s program was inappropriate because respondent refused to provide a 1:1 aide for their daughter. Petitioners also argue that respondent’s 10-month program was inappropriate because their daughter required a 12-month program. They claim that the program at Variety was appropriate for their child, and ask that they be reimbursed for the cost of their daughter’s tuition for the 1998-99 school year.

        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]).

        Having reviewed the child’s IEP, I find that it accurately identified her special education needs. Although the child’s IEP annual goals were too broadly worded, I find that the supporting short-term objectives for those goals provided sufficient specificity to apprise the child’s teachers of the CSE’s expectations (Application of a Child with a Disability, Appeal No. 95-15). Therefore, I will not find that the CSE’s recommendation was inappropriate because of the manner in which the child’s goals were worded (Application of a Child with a Disability, Appeal No. 99-6). The central issue in this proceeding is whether the special education services which the CSE recommended that the child receive were appropriate for her. There is no dispute that the child required full-time primary instruction in special education, or that she needed the related services which the CSE recommended. I have considered the testimony by respondent’s witnesses regarding the nature of the UP-1 program and the needs of the other children enrolled in the proposed class for this child, as well as the testimony by petitioners’ witnesses about the child’s needs. I must concur with the hearing officer’s determination that her needs would have been appropriately addressed in the UP-1 class.

        Petitioners assert that the record demonstrates that their daughter is highly distractible. They contend that respondent would not have been able to provide a distraction-free environment for their daughter, particularly for her occupational and physical therapy. Petitioners contend that respondent’s witnesses indicated that their daughter’s therapies could have been provided in various rooms, including the gym, lunch room and even the hallway, at the Seaford Manor School. However, respondent’s Director of Special Services explained that the district’s witnesses had testified that related services were provided to children in rooms such as the gym when it was appropriate for them to receive services there. She indicated that this child’s needs would determine where her related services were provided, and she indicated that respondent had suitable facilities for providing those services (Transcript, pp. 539-540). The occupational therapist serving the recommended program also testified that the child’s needs would dictate how the treatment was to be performed, where it was to be performed, and whether it was to be performed individually or in a group (Transcript p. 277). She further testified that in the first instance, the child would have been provided occupational therapy on a pull-out basis due to her mother’s reservations regarding push-in therapy (Transcript p. 278). The occupational therapist stated that all the children in the program were very distractible and indicated that various techniques were used to increase a child’s ability to focus (Transcript p. 280).

        The record shows that the child is highly distractible and performs better with fewer distractions. However, it does not follow that respondent must provide a distraction-free environment for the child, assuming that there is such an environment. I find that the recommended program had staff with experience working with children who were distractible, and it was equipped to offer related services in a variety of settings so that the child could have benefited from those services.

        Petitioners also claim that their daughter’s distractibility, feeding difficulties, and tendency to wander created safety concerns requiring that she have an individual aide which the CSE had not recommended. However, I am not persuaded that the child required an individual aide. Although the child’s evaluators were consistent in recommending that the child be placed in a structured, special education class with a minimal student:teacher ratio, I note, as did the hearing officer, that none of them recommended an individual aide for the child. There would have been fewer children in respondent’s UP-1 class than were in the child’s class at Variety during the 1997-98 school year. Respondent’s Director of Special Services testified that the child’s management needs were similar to the management needs of the other students in the program (Transcript p. 140). She stated that there were several aides in the classroom standing in close proximity to the highly distractible children to redirect them (Transcript p. 108). The school psychologist testified that because of the number of adults in the classroom throughout the day, there would always be sufficient staff available to redirect the child should she become distracted (Transcript p. 246).

        Petitioners understandably are concerned about their daughter’s safety. However, the record shows that the child would have been carefully monitored by staff with expertise in working with children with needs like those of petitioners’ daughter. For example, respondent’s speech/language pathologist testified that during lunch and recess, four aides were available for the seven students, in addition to the teacher or teacher’s assistant and related service providers (Transcript p. 223). She also testified that she established feeding programs for those students that require assistance with eating and that she trained teachers and aides to do oral motor exercises with those children (Transcript p. 191).

        Petitioners also assert that the district’s program was inappropriate because it was only a 10-month program. They contend that their child might have regressed if required to transition from Variety to a separate summer program and then to the UP-1 program within a three-month period. As noted above, the child remained at Variety for the Summer of 1998 pursuant to the CSE’s recommendation on June 23, 1998. Therefore, petitioners’ concern with regard to their daughter’s transitioning relates to the transition between Variety and the UP-1 program in September, 1998.

        While the record shows that the child had difficulty transitioning, it also shows that she was able to successfully adjust once she became familiar with her surroundings (Transcript pp. 327, 391 and 452). I note that respondent’s occupational therapist indicated that the child transitioned easily during the re-evaluation. The record also shows that the district’s program included a transition program that began on the first day of school and that the staff had experience with similar children who had similar difficulties transitioning.

        Based upon the information before me, I am unable to find that the issues raised by petitioners rendered the recommended program inappropriate. To the contrary, I find that the program recommended by respondent’s CSE was appropriate. The record shows that the child required a small, highly structured class focusing on communication. The program was described as a highly structured, therapeutic, language based program with heavy emphasis on improving communication skills. The record shows that the students were closely monitored by trained and experienced staff. While the recommended class was limited to eight students, the class had only six students at the beginning of the year, a teacher, a teacher’s assistant and four aides, in addition to related services therapists providing push-in services. The record also shows that the child had similar needs and was functioning at a level similar to the other students in the class.

        Petitioners seek tuition reimbursement. 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]). I have found that respondent met its burden of demonstrating the appropriateness of the recommended program. As petitioners have not prevailed on the first criterion for an award of tuition reimbursement, it is not necessary that I address the second and third. Accordingly, petitioners’ request for tuition reimbursement is denied.





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