The State Education Department
State Review Officer

No. 00-033





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 Hewlett-Woodmere Union Free School District


William E. Nelson, Esq., attorney for petitioner

Ehrlich, Frazer & Feldman, attorneys for respondent, Florence T. Frazer, Stacy L. Gordon and Laura A. Ferrugiari, Esqs., of counsel



        Petitioner appeals from the decision of an impartial hearing officer which found that the Nassau County BOCES Site for Alternative Values Education (SAVE) Program was an appropriate placement for his son for the 1999-2000 school year. The hearing officer denied petitioner’s request that respondent be directed to reimburse him for his son’s tuition at the Vincent Smith School (Vincent Smith) for that year. The appeal must be sustained.

        Petitioner’s son is fourteen. Petitioner and his son moved into respondent’s district when the boy was in fourth grade. He was placed in a self-contained special education classroom pursuant to an individualized education program (IEP) that had been prepared for him by his former school district in another state (Transcript pp. 33-34). The record contains little information about the student’s education from fourth to sixth grades. He was apparently classified as other health impaired based on his diagnosis of an attention deficit hyperactivity disorder, for which he was prescribed medication (Transcript p. 47).

        During in the 1998-99 school year, the student was in the seventh grade at the Woodmere Middle School. He was enrolled in regular education classes and received resource room services and occupational therapy, as well as the assistance of an aide. On February 23, 1999, respondent’s Committee on Special Education (CSE) conducted a special review of the boy’s academic, social and emotional functioning. The CSE noted on the IEP which it prepared on that day that the student had exhibited impulsivity and poor social judgment affecting his performance in class and during less structured activities. He reportedly had no difficulty with assignments in class, but did not complete all of his homework assignments. The IEP indicated that the boy had achieved a verbal IQ score of 118, a performance IQ score of 100, and a full scale IQ score of 110 in 1996, and percentile scores of 51 for reading, 41 for math, and 99 for spelling in January 1997. The student’s speech and language skills were reported to be age appropriate.

        While his social and emotional development were reported to be improving in some areas, the IEP stated that more improvement was needed. The IEP also stated that the student needed an environment that could accommodate his emotional and behavioral needs and that he required intensive assistance and teacher intervention. The CSE recommended that the boy continue to receive the assistance of an aide in class and between classes in the hallway, as well as special transportation to and from school. It further recommended that he receive 30 minutes of individual counseling per week. The CSE also recommended that resource room services be discontinued. On the IEP, the CSE identified five goals for the student: improvement in independent reading skills, written expression, organizational and study skills, appropriate social skills and behaviors and decision making skills (Exhibit 1). Petitioner did not challenge the IEP.

        At the February 23, 1999 meeting, the CSE also developed a Behavior Intervention Plan for the student (Exhibit 2). The plan indicated that the student had problems maintaining self-control as exhibited by his difficulty working independently, his disruptive behavior in class, taking things from others and failing to follow school rules and classroom procedures. The plan also indicated that the student did not use appropriate social judgment as exhibited by verbally offensive and intrusive behavior toward adults and peers, greeting peers inappropriately by hitting them or splashing them with water, becoming oppositional when corrected by adults, and refusing to wear proper attire for gym class. The plan included ten interventions to address his behavior with such things as a token reward system for positive behavior, consequences for inappropriate behavior, and adult supervision and assistance. A meeting to review the plan and modify it as needed was scheduled for April 15, 1999 (Exhibit 2).

        The school psychologist prepared a "Triennial Review—Summary of Progress" for the student shortly after the IEP was prepared (Exhibit 8). The review, which was dated March 26, 1999, did not provide the results of any new evaluations or state why new evaluations were not performed. I note that petitioner gave his written consent for respondent’s staff to reevaluate his son, except for a formal psychological evaluation, five days after the school psychologist completed the "Summary of Progress" (Exhibit 4). Although the February 23, 1999 IEP indicated that the student’s classification was other health impaired, the school psychologist stated in the Summary that the student was also classified as emotionally disabled. He noted that the student had at least high average intellectual potential and that his basic academic skills were at or above grade expectancy level. The school psychologist also noted that:

Progress has been shown by the fact that he has been able to remain in regular education classes with the support of an in-class aide who helps him, and other children, in the class. Last year [he] required instruction out of the class with a 1-1 aide for part of the year. The aide, Mrs. Diane Saunders, reports that [he] is developing more appropriate social skills and is now more accepted by peers both in class and in informal settings. There have been some occasions recently where [he] has exercised proper judgement in returning things that he found that belong to others and in not lying when confronted by the dean or by teachers. He also shows some improved ability to focus his attention and to comply with targeted behavior items on the behavior checklist.

However, [he] continues to need intensive supervision and constant externally imposed direction. He has limited ability to work independently despite very good intellectual ability and academic skills. Teachers report that he rarely hands in work that is supposed to be completed at home. He learns best what he hears during class lessons but does little studying to reinforce these lessons.

[The student’s] impulsive behavior has led to disciplinary action in school. He has been reprimanded for taking things that belong to others, for threatening to hurt other children, for bringing inappropriate and potentially dangerous items to school (a propane cigarette lighter) and for other times when he disregarded school rules.

As summarized on [his] BIP, much of his behavior seems to be related to a combination of emotional/personality characteristics as well as to neurosensory dysfunction A.D.H.D. pattern.

With constant, intensive external guidance and continual reinforcement for appropriate behavior he has shown some gains in behavior control and in social relationships. He continues to require this intensive direction which also fulfills his overarching need to be connected to others and to not feel abandoned or left out (Exhibit 8).

        The psychologist also signed a Functional Behavioral Assessment Worksheet (FBA) dated March 26, 1999 (Exhibit 3) which was reportedly prepared as a result of discussion among petitioner, school staff, and a private psychologist who was treating the student (Transcript pp. 39-40). The FBA set out the same behaviors described above. The psychologist also posited that the targeted behavior gave the student a feeling of self-worth, importance and connectedness with peers and adults and helped him to avoid feelings of loneliness, low self-esteem and fear of abandonment. He concluded that ways to reduce or eliminate the unwanted behavior would be to:

Take steps to help the student to feel wanted, accepted and recognized in class and by peers.

Provide external supervision, direction and support to compensate for student’s difficulties with utilizing internally directed proper behavior.

Remove the student from temptations or circumstances that he will not be able to cope with appropriately (Exhibit 3).

        The CSE reviewed the school psychologist’s report at a meeting held on May 24, 1999. The school psychologist testified that the CSE considered the continued appropriateness of the student’s classification as other health impaired and his placement in respondent’s schools (Transcript pp. 76-77). Although the CSE reportedly concluded that the student’s emotional needs required a placement in a comprehensive therapeutic environment, it did not recommend a placement at that meeting (Transcript p. 77). The student’s final marks for seventh grade included 59 in Language Arts, 61 in Social Studies, 84 in Spanish, 70 in Math and 67 in Science (Exhibit 6).

        The CSE prepared a new IEP for the student when it met on September 1, 1999 (Exhibit 7). The committee minutes state that the CSE reviewed an educational evaluation dated March 16, 1999, but the IEP refers only to the 1996 and 1997 assessments that were also reported on the student’s prior IEP. The minutes also state that the committee reviewed a "psychological evaluation" dated March 26, 1999. Apparently this refers to the school psychologist’s review discussed above and not to an evaluation. The IEP gives no indication why the committee felt new psychiatric, psychological, educational or other evaluations were not needed.

        In September 1, 1999 IEP for the 1999-2000 school year, the CSE recommended that the student’s classification be changed to emotionally disabled and other health impaired (Exhibit 7). It also recommended that he be placed in a special education class of nine students, one teacher and two aides in the BOCES-SAVE program, with no regular education instruction. According to the IEP, the student required a full-time special education placement because of "significant educational difficulties". The CSE also recommended that the student receive 30 minutes of individual counseling and 30 minutes of group counseling each week. It also determined, contrary to its February 23, 1999 finding, that the student was eligible for an extended school year (ESY) program to prevent substantial regression. The CSE stated that it reviewed significant evidence of the student’s need for an ESY program, but did not specify what that evidence entailed. The new IEP eliminated the student’s academic goals and repeated the following behavioral goals from the prior IEP: improvement in appropriate social skills and behaviors, decision making skills and organizational and study skills.

        The CSE minutes indicated that petitioner had already enrolled his son in Vincent Smith, which has not been approved by the New York State Education Department to provide special education to children with disabilities. Petitioner requested an impartial hearing seeking reimbursement for the tuition at Vincent Smith during the 1999-2000 school year. Petitioner also sought funding for the private counseling the student received during the time he attended Vincent Smith. The hearing was conducted on September 27, 1999 and October 15, 1999. The hearing officer issued his decision on April 13, 2000. He noted that the student’s classification was not in dispute, and found that petitioner had participated fully in the preparation of his son’s IEP at the September 1, 1999 CSE meeting. The hearing officer further found that the student’s IEP adequately described the student’s current levels of performance, and included appropriate annual goals and short-term objectives. He also found that the student would have been appropriately grouped for instructional purposes in the proposed BOCES class. Having determined that respondent had offered an appropriate placement to the student for the 1999-2000 school year, the hearing officer denied petitioner’s request for an award of tuition reimbursement at Vincent Smith.

        Petitioner challenges the CSE’s recommendation that his son be removed from the mainstream academic curriculum and placed in a restrictive full-time special education class. He argues that respondent has provided insufficient justification to support the change from the February 23, 1999 IEP, which recommended that his son continue in the regular education curriculum, to the September 1, 1999 IEP, which recommended he be placed in SAVE, which is a self-contained special education program.

        A board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (Application of a Child with a Disability, Appeal No. 93-9; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Handicapped Child, 22 Ed Dept Rep 487 [1983]). An appropriate program begins with an IEP that accurately reflects the results of a child’s evaluations to identify his or her 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 that are related to the child’s educational deficits (Application of a Child with a Disability, Appeal No. 93-9; Application of the Board of Education of the Taconic Hills Central School District, Appeal No. 99-12).

        The Federal Regulations implementing Section 504 of the Rehabilitation Act of 1973 require that a school district evaluate a child before making a significant change in the child’s placement (34 CFR 104.35[a]). A CSE’s failure to perform an adequate evaluation of a child before recommending a change in placement may afford a basis for annulling that recommendation (Appeal of a Child with a Disability, Appeal No. 99-41; Application of a Child with a Disability, Appeal No. 96-22). The September 1, 1999 IEP, which recommended moving petitioner’s son from mainstream classes to the SAVE program, clearly constituted a change in this student’s placement for which an adequate evaluation was required. Moreover, the record indicates that respondent was responsible for conducting a triennial evaluation of the student during the 1998-99 school year. Federal and State regulations require that each child with a disability be re-evaluated at least once every three years to determine the child’s individual needs and continuing eligibility for special education (34 CFR 300.534; 8 NYCRR 200.4[b][4]). If a CSE determines that additional data are not needed for a re-evaluation, it must advise the student’s parents of that fact (8 NYCRR 200.4[b][4]; 200.4[b][5][iv]). There is no evidence of that determination or notice to the parents of a determination.

        The CSE meeting minutes dated September 1, 1999 indicated that the CSE had relied on an educational evaluation dated March 16, 1999 (Exhibit 7). The IEP itself, however, simply referred to the results of assessments made in 1996 and 1997, which also were reported on the February 23, 1999 IEP. There is no evidence of a March 16, 1999 education evaluation in the record. The meeting minutes also listed a "psychological evaluation" dated March 26, 1999. As discussed above, this appears to refer to a review and "Summary of Progress" prepared by the school psychologist. The document did not report the results of any current evaluations or explain why the psychologist thought it was not necessary to obtain such evaluations. At a later date petitioner indicated he did not consent to a psychological evaluation (Exhibit 4). The record does not indicate why respondent did not follow procedures for obtaining authorization for an evaluation. The psychologist’s summary also referred to a report from the student’s occupational therapist, which does not appear in the record. The record does not detail the evidence of regression the CSE relied upon in deciding that the student needed to move into a twelve-month program. The CSE did not obtain a psychiatric evaluation or the results of a physical examination. I find that the CSE did not obtain sufficient evaluations to support its recommendation to change the student’s placement for the 1999-2000 school year. Because the CSE did not obtain sufficient information through evaluations of the student to assess his needs and determine what services would address them, I further find that respondent failed to meet its burden of proving that it offered to provide a free appropriate public education to the student for the 1999-2000 school year.

        A board of education may be required to pay for educational services obtained for a student by his or her parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent's claim (Burlington School Comm. v. Dep't of Educ., 471 U.S. 359 [1985]). The failure of a parent to select a program known to be approved by the state in favor of an unapproved option is not itself a bar to reimbursement (Florence County School Dist. Four v. Carter, 510 U.S. 7 [1993]). As noted above, I have found that respondent failed to meet its burden of proof.

        The student’s father bears the burden of proof with regard to the appropriateness of the services provided by Vincent Smith during the 1999-2000 school year (Application of a Child with a Disability, Appeal No. 95-57; Application of a Child with a Disability, Appeal No. 94-29). In order to meet that burden, the parent must show that the private school offered an educational program that met the student’s special education needs (Burlington School Comm. v. Department of Educ., 471 U.S. 359, 370 [1985]; 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 student (Application of a Child with a Disability, Appeal No. 94-20).

        Although the full extent of the student’s needs cannot be determined from the record before me, I find that he has social/emotional deficits, in addition to an attention deficit hyperactivity disorder, which have affected his performance in school. At the hearing, the student’s private psychotherapist opined that the student’s primary difficulty was an emotional condition involving issues of abandonment, immaturity, social isolation, and low self-esteem (Transcript p. 346). She also opined that he required an inordinate amount of attention, and he needed to be held accountable for his actions with regard to his interactions with peers and completion of school and homework assignments.

        The student had been enrolled in Vincent Smith for approximately one month when the hearing was held. The school’s chief operating officer testified that the student continued to have behavior problems and failed to submit his homework assignments (Transcript pp. 303-305). She explained that the student was sent to her office if he misbehaved. If he was sent to the office three times, he was required to attend a detention class on Saturday or be separated from his class and do his work in a chair in her office (Transcript p. 304). If he failed to complete his homework, the student was required to work with a teacher during the eighth period of the school day (Transcript p. 305, 332). The chief operating officer testified that she and all the teachers worked with the student on his behavior, using a positive, supportive approach and praise for appropriate behavior (Transcript p. 332).

        The student’s private psychotherapist testified that she had discussed the student’s needs with the chief operating officer of Vincent Smith, and that a reward system for improved behavior was about to be implemented (Transcript p. 348). For example, the student would be able to earn certificates for satisfactory completion of his homework which could be exchanged for "nights off" from homework. She opined that Vincent Smith was good for the student because it had small classes to give him the attention he required and because it made him accountable for his homework to help him transition to the mainstream (Transcript pp. 351-352). Based upon the information before me, I find that petitioner has met his burden of proof with respect to the appropriateness of the educational services provided by Vincent Smith.

        In order to obtain an award of tuition reimbursement, petitioner must also show that his claim for an award is supported by equitable considerations. There is no indication in the record that petitioner failed to cooperate with the CSE. The fact that he had enrolled his son in Vincent Smith prior to the CSE meeting on September 1, 1999 does not afford a basis for finding that his claim for tuition reimbursement is not supported by equitable considerations. I find that petitioner has satisfied the third criterion for an award of tuition reimbursement.



        IT IS ORDERED that the decision of the hearing officer is hereby annulled; and,

        IT IS FURTHER ORDERED that respondent shall reimburse petitioner for the cost of his son’s tuition at the Vincent Smith School during the 1999-2000 school year, upon petitioner’s submission of proof of payment.




Dated: Albany, New York __________________________
June 29, 2001 FRANK MUŅOZ