The State Education Department
State Review Officer

No. 00-005




Application of the BOARD OF EDUCATION OF THE NEWBURGH ENLARGED CITY SCHOOL DISTRICT for review of a determination of a hearing officer relating to the provision of educational services to a child with a disability

Shaw & Perelson, LLP, attorneys for petitioner, Michael K. Lambert, Esq., of counsel

Westchester/Putnam Legal Services, attorneys for respondents, Linda A. Geraci, Esq., of counsel



        Petitioner, the Board of Education of the Newburgh Enlarged City School District, appeals from an impartial hearing officer’s decision which ordered it to reimburse respondents for the cost of their son's tuition at Oakwood Friends School (Oakwood), a private school in Poughkeepsie, New York, for the 1999-2000 school year. The appeal must be dismissed.

        Respondents’ son was 14 years old and in the ninth grade at Oakwood at the time of the hearing. Oakwood has not been approved by the New York State Education Department to provide education to children with disabilities. The student has a diagnosis of Tourette’s syndrome and obsessive-compulsive disorder (OCD). In May 1998 when the student was in the seventh grade at petitioner’s Heritage Junior High School (Heritage), his neurologist advised the school that the student needed to be excused from attending school for the remainder of the school year because of his Tourette’s syndrome (Exhibit 17). The student began receiving home instruction on May 20, 1998 (Exhibit 20). He reportedly did well in some honors level seventh grade courses (Exhibit 12).

        The student returned to Heritage for eighth grade during the 1998-99 academic year. On September 17, 1998, the student’s neurologist advised the school that the student was having a relapse of his Tourette’s syndrome and that he required home instruction until further notice (Exhibit 20). Subsequently, the student began receiving home instruction, which he continued to receive for the remainder of the 1998-99 school year. By letter dated September 25, 1998, respondents requested that their son be evaluated for special education services (Exhibit 1).

        In a psychological evaluation conducted on November 12, 1998, the school psychologist reported that the student was receiving instruction at home because of peer harassment related to the student’s pronounced and frequent manifestations of Tourette’s syndrome (Exhibit 6). The student achieved a verbal IQ score of 110, a performance IQ score of 106, and a full scale IQ score of 108 on the Weschler Intelligence Scale for Children-III (WISC-III), placing him in the bright normal range of intellectual functioning. The school psychologist opined that the student’s scores were an underestimation of his true potential because his performance anxiety on timed tests limited his efficiency and concentration. He further opined that the student’s performance anxiety was in part related to a fear of being wrong and a desire to keep things in order manifested by compulsive doubting and self-checking often associated with OCD. The student’s scores for mathematics applications and reading comprehension on the Kaufman Test of Educational Achievement (KTEA) indicated superior potential. The school psychologist noted that when faced with more difficult test items, the student demonstrated "Tourette’s-type symptomology, mostly characterized by mouth-simulated flatulence noises. There is also gulping or swallowing or hiccuping noises as well as tics." Personality testing suggested that the student had fears of the environment which interacted with real threats from the environment causing him to increasingly reject reality and repress feelings as a way to avoid peer aggression. Personality testing also suggested that the student was at risk for acquiring a process disorder or decompensation with permanent residuals, unless he was placed in a protected educational environment, without acting out students.

        In a report dated November 20, 1998, the student’s neurologist indicated that the student had a diagnosis of Intractable Tourette’s Syndrome characterized by a variety of motor and vocal tics which were extremely disruptive to him and the people around him (Exhibit 7). The neurologist also reported a diagnosis of OCD. He noted that despite continued attempts to control the student’s tics through medication, none had been or were expected to be successful. The neurologist opined that the student could not participate in a public school setting because of the nature of his chronic illness. He further opined that the student required a private school setting with smaller class sizes to decrease the environmental stimulation which contributed to the student’s tics. He cautioned that the student’s psychological trauma could worsen if he were compelled to return to a public education environment.

        On December 3, 1998, the psychotherapist who had been treating the student since September 1998, reported that the student had been referred for psychotherapy because he was unable to continue attending school at the beginning of the 1998-99 academic year due to the accumulated stress of attempting to control his tics in the presence of others, as well as the taunting, teasing and physical abuse from other students, and the generally overstimulating environment of a large public school (Exhibit 9). The psychotherapist further reported that the student had shown significant symptoms of OCD. He noted that the student reportedly experienced harassment from classmates beginning in the early years of elementary school, and had evidenced signs of school phobia since that time. He further noted that though the student had become increasingly phobic about the school environment throughout his elementary school years, he nevertheless had managed to maintain excellent academic progress. The psychotherapist reported that when the student was in the seventh grade during the 1997-98 academic year, he became increasingly agitated, anxious and depressed as he was attempting to cope with verbal and physical abuse from students and the hectic pace and demands of the junior high school routine. Additionally, the student was under continual pressure due to his attempts to control the motor and verbal tics he manifested throughout the day. He was living in fear of humiliation if unable to control the tics. The student’s stress increased to the point that the tics were no longer responding to medication, and he developed head-jerking movements which made it impossible for him to read, attend to his homework, and at times, hold a pen.

        The psychotherapist reported that prior to the beginning of the 1998-99 academic year, the student’s eighth grade year, he became anxious about attending school and began showing marked symptoms of school phobia as well as possible post traumatic stress disorder. Within two weeks of the beginning of the school year, the pressure of attempting to control his tics, combined with the harassment from other students required the student to return to home instruction. An improvement in the student’s mood and tic production was reported since his removal from the school environment. However, the psychotherapist indicated that the student needed to be in an environment with other students so that his emotional and social development would progress normally. He opined that the student’s specific problems made it increasingly difficult for him to maintain himself emotionally in a public school setting, and that it was exceedingly unlikely that he would be able to deal with the stress of a public school setting. The psychotherapist strongly recommended that the student be placed in a smaller school setting with fewer children per class to allow for closer observation and supervision, as well as closer monitoring of the student’s emotional state and social issues. He further recommended that a placement be found that would minimize social and physical harassment, help the student cope socially and emotionally with his Tourette’s syndrome, and provide him an intellectually challenging environment.

        Petitioner’s committee on special education (CSE) met on December 9, 1998. It determined that the student was not eligible for classification as a child with a disability because his educational performance was commensurate with his abilities (Exhibit 10). No parent member was present at the meeting. On April 22, 1999, respondents requested an impartial hearing to review the CSE’s refusal to classify their son (Exhibit 11).

        On June 9, 1999 a guidance counselor from Heritage reported that the student’s home instruction teachers had indicated that the student worked extremely hard, was meticulous, and would continue to work until his assignments were flawless (Exhibit 12). They further indicated that he exhibited many symptoms of typical OCD, and as a result required more time to complete his work.

        In a letter dated June 23, 1999, the student’s neurologist indicated that the student continued to have a significant variety of disruptive motor and vocal tics and that he continued to exhibit elements of OCD (Exhibit A). The neurologist further indicated that the student’s current medication controlled his tics only to a modest extent, noting that other medications had had deleterious side effects. He opined that the student should not return to a public education environment because it would be significantly disruptive to him neurologically as well as psychologically. He indicated that the student’s interest would be best served if he was allowed to be in an alternative education program.

        The impartial hearing began on July 1, 1999. The hearing officer remanded the case to the CSE because it did not have each of its required members at the December 1998 meeting. However, he retained jurisdiction of the matter. The CSE reconvened on July 7, 1999. It classified the student as other health impaired, and recommended that he be placed in a self-contained class with a 12:1:1 student:staff ratio in an out-of-district private day program (Exhibit 15). The notice of the CSE’s recommendation to respondents indicated that a placement was pending. The notice also indicated that the student’s disability impeded his learning in all academic areas. The individualized education program (IEP) which the CSE developed for the student indicated that a regular education placement had been rejected as an option because a large group setting impacted the student’s behavior and his physical needs required a small setting. Additionally, the IEP noted that the student required a highly structured therapeutic environment. The IEP established goals for reading, language arts, math, social studies and science/health. However, no social/emotional annual goals were included.

        At the end of July 1999, the CSE began exploring placements options outside of the district. The CSE convened on August 30, 1999 and recommended that the student be placed at the Southern Westchester Board of Cooperative Educational Services (BOCES) Therapeutic Support-Fragile program located at Rye Neck High School. It developed a new IEP at that meeting (Exhibit 29). A notation on the IEP provided that the student was an honors program student who required a special needs program to function in class because of his Tourette’s syndrome. Again, there were no social/emotional goals for him on the IEP.

        The student’s parents completed a form requesting an impartial hearing because they did not believe that the recommended placement was appropriate to meet their son’s needs (Exhibit 30). Respondents enrolled their son in Oakwood for the ninth grade in September 1999. Their hearing request was received on August 30, 1999. The hearing resumed on September 14 and 21, and ended on October 19, 1999.

        The hearing officer rendered his decision on December 1, 1999. He found that the student’s IEP was invalid because it failed to include social/emotional goals. The hearing officer further found that Oakwood was the proper placement for the student for the 1999-2000 school year, and he granted the parents’ request for tuition reimbursement. He determined that petitioner’s claim that the student was not eligible to receive tuition reimbursement under Section 1412(a)(10)(C)(ii) of the Individuals with Disabilities Education Act (20 U.S.C. 1400 et seq., hereinafter referred to as IDEA) was "moot" because the student had been receiving home instruction from petitioner. Although he found that the student’s parents had not provided proper notification to the Board of Education of their decision to enroll their son in a private school, the hearing officer also found that the Board of Education had not given the parents timely notice of a placement for their son. Consequently, he declared the issue of respondent’s failure to provide proper notice to be moot. The hearing officer ordered the CSE to reconvene to develop a valid and complete IEP.

        The Board of Education appeals from the hearing officer’s decision on several grounds. Initially, it argues that the student’s IEP and recommended placement were appropriate. Petitioner asserts that the hearing officer found that its program was appropriate, but then applied the wrong legal standard in finding that Oakwood was the "most appropriate" placement for the student. It contends that once he had determined that petitioner’s program was appropriate, the hearing officer was precluded from considering the appropriateness of the parental placement. Although the hearing officer indicated that Oakwood was the most appropriate placement, he found that the student's IEP was invalid because it lacked annual goals related to his social/emotional development. He further found that petitioner's program was overly restrictive. I find that petitioner's assertion that the hearing officer found its educational program to be appropriate is without foundation in fact.

        Petitioner 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).

        The record shows that the student has been diagnosed with Tourette’s syndrome and OCD. It further shows that during the school day, he attempted to suppress his symptoms of Tourette’s syndrome to avoid peer harassment, but that the stress associated with his efforts exacerbated his condition and he became fearful of attending school. In the social development section of the IEP developed at the August 1999 CSE meeting, the student’s self-concept was described as poor and his relationships with peers was described as fair. Additionally, there is a notation on the IEP indicating that the student was the victim of his peers due to the Tourette’s syndrome, causing depression and poor self-concept. The IEP further provides that the student had difficulty attending school in a regular education program because of aggressive behaviors of other students. While the CSE identified the student’s social and emotional needs, it failed to establish goals to address those needs, which were preventing him from attending regular education classes in petitioner’s schools. I concur with the hearing officer’s finding that the IEP which the CSE prepared was invalid (Application of a Child with a Disability, Appeal No. 97-26). Accordingly, I find that petitioner has failed to demonstrate the appropriateness of the program which its CSE recommended for the student.

        The hearing officer awarded tuition reimbursement to respondents for the cost of their son’s tuition at Oakwood for the 1999-2000 school year. Petitioner argues that respondents are not entitled to tuition reimbursement because their son has never received special education and related services under the authority of a public agency (See 20 U.S.C. 1412[a][10][C][ii]). This argument was made in another appeal (Application of a Child with a Disability, Appeal No. 98-41). Absent convincing evidence to the contrary, I cannot conclude that the statute was meant to preclude an award of tuition reimbursement to the parent of a child who had not previously received special education services from a school district. I must also note that petitioner had been providing home instruction to the student since May 1998, except for a brief two-week period in September 1998.

        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 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]). Having found that the board failed to demonstrate the appropriateness of the program recommended by its CSE, I find that respondents have prevailed with respect to the first criterion for an award of tuition reimbursement.

        With respect to the second criterion for an award of tuition reimbursement, the student’s parents bear the burden of proof to demonstrate the appropriateness of the services which they obtained for their child at Oakwood during the 1999-2000 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 parents must show that the services were proper under the IDEA (Burlington, supra, at 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).

        The record shows that respondents’ son was academically quite capable. However, it became impossible for him to benefit from a placement in petitioner’s schools because of the stress associated with his symptoms of Tourette’s syndrome and the negative effects of his interaction with peers in the public schools. The professionals who evaluated the student were in agreement that he required a small, supportive environment which provided sufficient supervision and observation of students to ensure that the student was protected from harassment and which would provide for closer monitoring of his social/emotional needs. Additionally, the record shows that the student required an intellectually challenging environment where he could comfortably relate to other students to ensure normal social and emotional development.

        The Assistant Head of Oakwood, who also serves as Director of Studies, testified that Oakwood offered a college preparatory program to 127 students in grades six through twelve, and that virtually 100 per cent of students attended college after graduation (Transcript pp. 543-544, 456). He further testified that class sizes ranged from five to twelve students, with the exception of the student’s history class which had 15 students (Transcript p. 561). The Assistant Head of Oakwood stated that the school had a long tradition of respect for the individual and was committed to nonviolence and diversity among students and teachers (Transcript p. 544). The curriculum and community at Oakwood are guided by the ideals of truth-seeking, simplicity, nonviolence and respect for the worth of every individual (Exhibit B). Each student is required to enter into a contract to abide by the rules and spirit of the school (Exhibit E). The Assistant Head of Oakwood also stated that the school offered various emotional support services, such as a school social worker and a student assistance committee, which met weekly to discuss students who were having difficulty. The school also had in place specific policies with respect to student harassment and discipline (Exhibit E).

        The Assistant Head of Oakwood also testified that the student had adjusted well to the school environment and that he appeared comfortable and happy (Transcript p. 571). He indicated that the student had received grades ranging from C+ to A for the first marking period of the year (Transcript p. 570). As noted above, the record shows that in an effort to avoid peer harassment, the student attempted to control his symptoms, exacerbating his tics and causing anxiety which in turn affected his education. Given the nature of the student’s disability, it is clear that in order to receive an educational benefit the student required a supportive environment where he felt comfortable. I find that Oakwood offered an intellectually stimulating environment in a small, supportive, protective setting which addressed his social/emotional needs resulting from Tourette’s syndrome. Accordingly, I find that the parents have met their burden of demonstrating the appropriateness of the program at Oakwood.

        The third criterion for an award of tuition reimbursement is whether equitable considerations support the parents’ claim. Petitioner argues that respondents are not entitled to tuition reimbursement because they failed to provide the required notice that they had placed their son at Oakwood. The IDEA provides that a tuition reimbursement award for a unilateral placement may be reduced or denied if at the most recent IEP meeting that the parents attended prior to removal of the child from the public school, the parents did not inform the IEP team that they were rejecting the placement, including stating their concerns and their intent to enroll their child in a private school at public expense; or the parents failed to provide written notice, within ten days prior to removal of their child from the public school, of their concerns regarding the IEP and their intent to enroll the child in private school at public expense (20 U.S.C. §1412[a][10][C][iii]). The record shows that at the July 1999 meeting, respondents advised the CSE chairperson of their interest in Oakwood (Transcript p. 627). The record further shows that the CSE chairperson subsequently spoke to an Oakwood administrator (Transcript p. 142). The student’s father testified that he advised the CSE chairperson in early August that he had begun the process of enrolling his son in Oakwood because no placement had been offered for the 1999-2000 academic year (Transcript p. 516). Although the CSE chairperson testified that she was never formally notified that the parents had enrolled their son at Oakwood, she acknowledged that during the August 1999 meeting she was advised by the parents that they would not place their son at the BOCES program, that they were looking into alternative placements, and that they would seek a hearing (Transcript . 620). The record also shows that the parents filed a request for an impartial hearing on the day of the meeting indicating that they did not believe that the recommended placement was appropriate to meet their son’s needs.

        I note that the parties disagree as to whether the parents were properly notified of their obligation to advise the district of their unilateral placement. I also note that there is no requirement that such notice be in writing, if the parents informed the CSE of their intention to seek a unilateral placement at the most recent CSE meeting prior to removal, which was the August 1999 meeting. The CSE chairperson acknowledged that the parents rejected the recommended placement at the August 1999 meeting. She also knew of the parents’ interest in Oakwood as early as July when she spoke with an administrator from that school. I find that there is no basis in the record for me to direct that respondents’ tuition award be reduced or denied. Additionally, there is no indication in the record that the parents failed to cooperate with the CSE. I find that equitable considerations support the parents’ claim and that they are entitled to reimbursement for the cost of their son’s tuition at Oakwood for the 1999-2000 academic year.

        Petitioner also questions whether the hearing officer was qualified to serve in such capacity. Pursuant to the Regulations of the Commissioner of Education, in order to be certified as a hearing officer, an individual must successfully complete a training program which provides information regarding applicable laws and regulations relating to the education and needs of students with disabilities (8 NYCRR 200.1[s]). An individual who has been certified by the Commissioner of Education as a hearing officer eligible to conduct hearings has received the required training and is permitted by law to conduct such hearings. Complaints regarding the competency of hearing officers should be addressed to the State Education Department’s Office of Vocational and Educational Services for Individuals with Disabilities, which is responsible for training hearing officers.

        I have considered petitioner’s other claims which I find to be without merit.





Dated: Albany, New York __________________________
January 12, 2001 FRANK MUŅOZ