The State Education Department
State Review Officer

No. 00-022




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

Hon. Michael D. Hess, Corporation Counsel, attorney for petitioner, Chad Vignola, Esq., and Alexandra Michalos Esq., of counsel

George Zelma, Esq., attorney for respondent



        The Board of Education of the City School District of the City of New York appeals from an impartial hearing officer's decision holding that petitioner had failed to meet its burden of demonstrating that it had offered to provide an appropriate educational program to respondent's son for the 1999-2000 school year. The hearing officer found that respondent had obtained appropriate special education services for her son at the Robert Louis Stevenson School (Stevenson). She ordered petitioner to reimburse respondent for the cost of her son's tuition at Stevenson. The appeal must be dismissed.

        I note that there are three volumes of transcript in the record. The first two are consecutively numbered. References to pages in those volumes will not include the hearing date. The third volume begins at page 123, which does not track with the last page of the second volume. References to pages in that volume will include the hearing date, January 27, 2000.

        Respondent's son is 18 years old. He was reportedly diagnosed as having an attention deficit hyperactivity disorder (ADHD), and began taking medication for that disorder while in the third grade at a private school (Exhibit 5). At the suggestion of that school, respondent placed her son in another private school for the fourth and fifth grades. The boy then moved to Hawaii to be with his father and stepmother. While in Hawaii, he attended a public school for sixth grade, and a boarding school for seventh grade and part of eighth grade. He was expelled from boarding school, and completed the remainder of eighth grade in a day school in Hawaii for children with learning disabilities. He returned to New York City to live with respondent, who enrolled him in York Preparatory School in Manhattan for the ninth grade during the 1996-97 school year. The student was reportedly asked to leave that school at the end of the school year because of behavioral difficulties. From September 1997 until February 1998, respondent's son was enrolled in a boarding school, the Storm King School, which also asked him to leave. He finished the 1997-98 school year at the Tutoring School, a private school.

        In June 1998, respondent referred her son to petitioner's committee on special education (CSE). She indicated in her son’s social history that the boy had difficulty with male authority figures, and was capable of manipulative defensive behavior. Respondent also revealed that the boy could be verbally aggressive, and had experimented with marijuana (Exhibit 5).

        A school psychologist who evaluated the student on June 13, 1998, reviewed the results of an evaluation previously performed on July 17, 1997. He reported that the student had achieved a verbal IQ score of 113, a performance IQ score of 120, and a full scale IQ score of 118, placing him in the high average range of cognitive functioning. He displayed good organizational/planning skills, and good short-term visual memory skills. Projective testing in the current evaluation revealed an anxious, somewhat impulsive youngster who regarded adults as distant and somewhat ineffectual. The student attributed his behavioral troubles in various schools to authority figures who allegedly lack insight and caring (Exhibit 6).

        An educational evaluation was also performed on June 13, 1998. The student achieved grade equivalent scores of 16.9 for letter-word identification, 16.9 for passage comprehension, 16.9 for calculation, 15.3 for applied problems, 9.8 for dictation, and 16.9 for writing sample on the Woodcock-Johnson Test of Achievement. The Evaluator noted that despite a relative weakness in spelling, respondent's son was academically functioning above grade level and age expectancy. The evaluator recommended that the student be placed in a setting which motivated him and challenged him academically (Exhibit 7).

        The CSE reportedly recommended that respondent's son be classified as emotionally disturbed, and be placed in petitioner's specialized instructional environment-VII (SIE-VII) agency program at Bellevue Hospital. Respondent placed her son instead at Stevenson, and commenced a proceeding to challenge the CSE's recommended placement. The parties agreed to resolve that proceeding by a stipulation, pursuant to which the Board of Education agreed to pay respondent a sum not to exceed $18,000 for the boy's tuition at Stevenson during the 1998-99 school year (Exhibit 19).

        The student was absent from school on 33 days during the 1998-99 school year (Exhibit 13). His teachers at Stevenson indicated that his absences and failure to complete assignments during the first three quarters of the school year had interfered with his progress, while noting that he was an able student who could do his work if he applied himself (Exhibits 10, 11, 12). The student’s attendance and performance improved during the last quarter of the year (Exhibit A).

        The CSE began its annual review in March 1999 with an updated social history in which respondent indicated that her son had been receiving psychotherapy and medicine once a week from Dr. Peter Walsh, and that her son was having some difficulty with his stepfather (Exhibit 8). I note that Dr. Walsh testified at the hearing that he was a psychiatrist who had been treating respondent’s son for a bipolar (manic-depressive) disorder for about two years. Dr. Walsh testified that he was treating the student with mood stabilizing drugs. He also testified that respondent’s son acted out in irrational ways when he was depressed, and would do reckless things when elated.

        An educational evaluator administered the Woodcock-Johnson Test of Achievement to the student on March 16, 1999. She reported that he showed strength in reading and reading related skills, with a broad reading grade equivalent score of 16.9 (standard score of 138). His math calculation grade equivalent score of 10.7 (standard score of 100) was lower than the score he had attained in his June 1998 evaluation. The student also achieved grade equivalent (and standard) scores of 11.6 (100) for science and 9.1 (94) for social studies. The evaluator noted that the student's written language skills were good, and that she did not observe any learning disability (Exhibit 9).

        A school psychologist re-evaluated the student on May 19, 1999. Although he was reportedly agitated upon learning that he was being re-evaluated, the student did participate in the evaluation. Nevertheless, his cognitive testing results were well below those he had achieved in June 1998. On the Stanford Binet IV, his verbal reasoning standard age score (SAS) of 88 was in the low average range. His SAS of 105 for abstract/visual reasoning and 106 for short-term memory were in the average range, and his SAS of 112 for quantitative reasoning was in the high average range. The evaluator noted that there was a potential for higher scores. She opined that the student had presented as a somewhat anxious oppositional adolescent who preferred an environment in which authority figures behave in a relatively predictable manner (Exhibit 4).

        The CSE met with respondent on June 11, 1999. The Headmaster of Stevenson participated by telephone in the meeting. He reportedly advised the CSE that the student had good academic skills, but got into difficulty with impulsive and destructive behavior. He also indicated that an increase in the boy’s impulsive behavior might be attributable to a recent change in his medication, and that his substance abuse had become less of an issue (Exhibit 3). The CSE recommended that the student remain classified as emotionally disturbed. There is no dispute about that classification in this proceeding. The CSE also recommended that respondent's son be placed in a SIE-VIII classroom with a 12:1+1 student to adult ratio in a school setting, rather than the agency setting, i.e., hospital, which it had recommended the previous year. The recommended placement was to be on a 12-month basis. The CSE further recommended that the student receive 30 minutes of individual and 30 minutes of group counseling each week. The individualized education program (IEP) which the CSE prepared for the 1999-2000 placement indicated that respondent's son was unable to participate in activities with non-disabled peers. It included four annual goals related to improving his ability to accept authority and cope with conflict and frustration, as well as participating in counseling (Exhibit 2).

        Respondent declined petitioner's invitation to attend a placement meeting at the conclusion of the CSE's annual review (Exhibit 15). In a Final Notice of Recommendation dated June 30, 1999, she was informed that a placement was available in "Class 903" in P. 169 at J. 60 (Exhibit 1). I note that at the hearing in this proceeding the Assistant Principal of P. 169 testified that there was no "Class 903" at his school (Transcript p. 46). In any event, respondent did not accept the recommended placement, and chose to continue her son’s enrollment in Stevenson for the 1999-2000 school year. On September 2, 1999, she requested an impartial hearing through her attorney (Exhibit E).

        The hearing in this proceeding began on November 30, 1999, having been adjourned to that date by agreement. The Board of Education's attorney asked the hearing officer to sign subpoenas for documents in respondent's and/or Stevenson’s possession. The hearing officer declined to do so on the grounds that it was neither appropriate or timely to do so (Transcript, pp. 12-13). She subsequently ordered petitioner's attorney to obtain a profile of the students in the class at P. 169 respondent's son would have attended had he been enrolled at P. 169 and provide it at the next day of the hearing. The hearing officer also denied the attorney's motion that she recuse herself on the ground of alleged bias against petitioner. The hearing continued on December 21, 1999, and ended on January 27, 2000.

        The hearing officer rendered her decision on February 18, 2000. Upon review of the student’s IEP, the hearing officer found that the CSE had accurately identified the student’s needs, established appropriate behavioral/emotional goals for him, and recommended an appropriate educational program for him. However, she found that the proposed placement at P.169 was not reasonably likely to confer educational benefit upon the student, because he was unlikely to respond well to the kinds of restrictions inherent in the program at P.169, and because the program was unlikely to satisfy his academic needs. Having found that the Board of Education had failed to meet its burden of establishing that it had offered to provide an appropriate placement to the student, the hearing officer further found that Stevenson provided the small, structured therapeutic environment the student needed. She also found that respondent’s claim for tuition reimbursement in the amount of $22,500 was reasonable, and was supported by equitable considerations.

        The Board of Education challenges the hearing officer's conduct of the hearing, as well as her decision to award tuition reimbursement. Although not raised in the Board's petition, the issue of the hearing officer's refusal to sign subpoenas on November 30, 1999 has been preserved for review (Transcript p. 12). Impartial hearing officers have an obligation to help unrepresented parties with subpoena requests. Petitioner was represented by an attorney who acknowledged that she had not previously attempted to obtain the documents covered by the subpoenas. Since the Board's attorney could have subpoenaed the documents under her own signature pursuant to Section 2302 (a) of the Civil Practice Law and Rules, I find that petitioner's challenge to the hearing officer's refusal to sign subpoenas is without merit (Application of the Board of Education of the City School District of the City of New York, Appeal No. 96-79).

        The Board of Education asserts that the hearing officer improperly denied it the opportunity to present a rebuttal case with regard to the functional levels of the students in the boy’s classes at Stevenson. At the hearing, Stevenson's headmaster testified about a series of class profiles for the classes in which respondent's son was enrolled for the 1999-2000 school year, collectively identified as Exhibit F. The profiles provided limited information about the cognitive, reading, and math levels, as well as the students' physical and emotional needs. This evidence was admitted into the record on the third day of the hearing, January 27, 2000. Upon completion of the parent’s case, the Board of Education's attorney announced her intention to call a CSE educational evaluator to testify about the abilities of one or more students in the boy's classes at the private school. The attorney also indicated that her rebuttal witness was unavailable to testify on January 27. She was questioned by the hearing officer about the nature and scope of the proposed testimony. The attorney indicated that she had reason to believe that some of the information provided by the private school was inaccurate with regard to student performance levels. The hearing officer reviewed the alleged discrepancies between the information presented in the class profiles and/or the Headmaster's testimony and that asserted to be true by the attorney (Transcript pp. 208-218). She concluded that there was an insufficient basis to grant an adjournment to present petitioner's rebuttal case.

        Parties are expected to present their full cases initially. However, a hearing officer may permit a party to present rebuttal evidence. I find that it was appropriate for the hearing officer to ask for a "proffer", i.e., an offer of proof, to justify the delay in completing the hearing which petitioner's request entailed. I further find that the hearing officer did not abuse her discretion in denying the request for an adjournment. While I understand petitioner's argument about the importance of suitable grouping for instructional purposes (see 8 NYCRR 200.6 [a][3]), I am not persuaded by the proffer made at the hearing that respondent would not have been able to demonstrate the appropriateness of Stevenson's program. I am also concerned about a possible violation of the confidentiality rights of the other students if the rebuttal witness had testified.

        The Board of Education asserts that its SIE-VII program at P. 169 would have met the student’s special education needs. It contends that the hearing officer erred in finding that the behavior management program in its program would have been inappropriate for respondent’s son, and that the student would not have been suitably grouped for instructional purposes with the students in the recommended program. 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). The Board of Education must show that its program was reasonably calculated to allow the student 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 student (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 student’s needs, establishes annual goals and short-term objectives which are related to the student’s educational deficits, and provides for the use of appropriate special education services (Application of a Child with a Disability, Appeal No. 93-9; Application of a Child with a Disability, Appeal No. 93-12). The hearing officer in this proceeding found that the student’s IEP was appropriate. Petitioner is not aggrieved by that determination, which I do not review. The hearing officer further found that the SIE-VII program at P.169, as described by the school’s assistant principal, was not reasonably likely to confer educational benefit upon respondent’s son.

        The assistant principal testified that the recommended placement was at one of P.169’s five sites, in this instance on two floors of the West wing of J.60. P.169’s students shared an auditorium, cafeteria and gymnasium with students enrolled in two other programs at J.60, but were not allowed to circulate freely throughout the building. The assistant principal explained that every pupil who entered the SIE-VII program began at the entry level of the behavior management program, and that entry level students "really have no privileges" and are escorted wherever they go in the building, including the bathrooms (Transcript pp. 26-27). Beyond the entry level, students earned the "privilege" of participating in sports, "good life activities" such as extra gym and art periods, obtaining a hall pass, and participating in an occupational education program.

        Dr. Walsh, the student’s psychiatrist, testified that any transition to a new educational setting for an adolescent with a bipolar disorder would be extremely dangerous because the student would perceive himself as having failed (Transcript p. 208). He further testified that having to be escorted within the school building would trigger the student’s "paranoid side", resulting in a very aggressive reaction and the student attempting to do whatever it would take to be removed from that environment, as he had done in other schools (Transcript pp. 209-210).

        Petitioner argues that the appropriateness of its program should not be determined upon the basis of speculation about the student’s adjustment to the program. While I agree with petitioner’s general proposition (Application of a Handicapped Child, 18 Ed. Dept. Rep 597; Application of a Child with a Handicapping Condition, Appeal No. 90-6; Application of a Child with a Disability, Appeal No. 98-59), I find that there is far more than mere speculation in this case. The psychiatrist provided expert and informed testimony about the nature of this student’s disability and the way it had affected him in prior educational placements. As noted above, respondent’s son had been expelled from or asked not to return to a number of schools. Stevenson’s headmaster testified about the student’s difficulties during his first year at that school. Among other things, he testified that the student had not begun to accept limits until the spring of 1999 (January 27, 2000 Transcript pp. 155-156). The headmaster, who had graduate training in clinical and school psychology, also opined that it would be dangerous to remove the student from Stevenson (January 27, 2000 Transcript p. 200). I have also considered petitioner’s argument that the hearing officer made an unwarranted intrusion into matters of educational methodology, which I find to be without merit. Upon the record before me, I concur with the hearing officer’s determination concerning the inappropriateness of petitioner’s behavior modification program for this student.

        Petitioner also challenges the hearing officer’s finding that respondent’s son would not have been suitably grouped for instructional purposes in the SIE-VII class at J. 169. I must first note that petitioner conceded that it had not properly identified the recommended class in the Final Notice of Recommendation, and that the assistant principal testified about a specific class which he would have recommended for respondent’s son (Transcript pp. 47-49). However, he acknowledged that he did not know whether the student would have in fact been assigned to that class if he had enrolled in the program. Petitioner’s counsel declined to produce a class profile, until directed to do so by the hearing officer. Thereafter, profiles of the class as of March 1999, September 1999, and December 1999 were introduced into evidence (Exhibit 16). I find that only the September 1999 profile is relevant for determining respondent’s claim for tuition reimbursement.

        Four of the ten students were reading on at least a 9th grade level, and two of the ten had at least 9th grade math skills. As noted above, respondent’s son had significantly better reading skills, with a grade equivalent of 16.9 for broad reading. His math score was a grade equivalent of 10.7. At the hearing, the assistant principal of P. 169 testified that the students in the class were working on either pre-algebra or sequential math, i.e. 10th grade Regents level math, and that students working at a higher level received individual instruction. The reading textbooks were written at a 6th to 9th grade level. The assistant principal also testified that students with reading levels above those of the other students received individual instruction. He was also questioned about how respondent’s son might be instructed in physics. The assistant principal indicated that certain students were sent to inclusion classes for specific subjects at a nearby public high school.

        The hearing officer found that respondent’s son would most likely have received individual instruction for some subjects at P.169, which would not have been appropriate for the student’s social/emotional growth, according to Dr. Walsh (Transcript p. 222). Dr. Walsh testified that bipolar students should be placed in as normal a setting as possible, and that it would be a huge emotional blow for this student to receive individual instruction because such instruction is associated with the severely disabled. The option of sending the student to inclusion classes at a nearby school was not, in my opinion, a viable option as of the start of the school year because of the nature of the student's disability. I must also concur with the hearing officer’s determination about the suitability of grouping for instruction, as well as her finding that the Board of Education had failed to meet its burden of proof about the appropriateness of the placement which it had offered.

        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 the Board of Education failed to meet its burden of proof with regard to the appropriateness of the placement it offered to provide. The burden of proof shifts to the student’s parent concerning the appropriateness of the services which she obtained from Stevenson for her son (Application of a Child with a Disability, Appeal No. 94-29; 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).

        The hearing officer found that respondent had met her burden of proof. Petitioner asserts that the record demonstrates that the student was not experiencing academic success at Stevenson. It relies upon his failure in a pre-calculus class for three of the four quarters of the 1998-99 school year and his failure in a statistics and probability course for the first quarter of the 1999-2000 school year. I am not persuaded by petitioner’s argument. The record demonstrates that respondent’s son has academic ability, but his performance is hampered by his emotional disability. The testimony of Dr. Walsh and Stevenson’s headmaster establishes that the student had begun to make significant progress in controlling his emotions, which is clearly the first step in what will be a long process in performing at a level which is commensurate with his ability. I find that respondent has met her burden of proof.

        The third and final criterion for an award of tuition reimbursement is that equitable considerations support the parent’s claim for the award. Since the petition does not directly address the issue, I will not review the hearing officer’s finding that equitable considerations did support respondent’s claim.






Dated: Albany, New York __________________________
February 6, 2001 JOSEPH P. FREY