The State Education Department
State Review Officer

No. 00-054

 

 

 

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 City School District of the City of New York

Appearances:
Sonia Mendez-Castro, Esq., attorney for petitioner

Michael D. Hess, Esq., Corporation Counsel, attorney for respondent, Blanche Greenfield, Esq., of counsel

 

DECISION

        Petitioner appeals from an impartial hearing officer's decision, which denied her request for tuition reimbursement for the cost of her son's tuition at the Xaverian High School for the 1999-2000 school year. The hearing officer denied petitioner's claim because he found that respondent had offered to provide an appropriate placement to petitioner’s son. The appeal must be sustained.

        Petitioner's son was an 18-year-old student at the Real Education Achievement (REACH) program at Xaverian High School in Brooklyn at the time of the hearing in April 2000. There is very little information in the record about the student’s prior schooling. He reportedly attended respondent’s P.S. 127 for kindergarten, first and second grades. Thereafter, he was apparently enrolled in private schools. The student has been diagnosed as having Tourette's syndrome and an attention deficit hyperactivity disorder (ADHD). At the hearing in this proceeding, a psychiatrist testified that the student had made good progress in dealing with Tourette's syndrome, and that his most significant remaining difficulty was the ADHD (Transcript p. 53). As a result of his disability, the student’s math and writing skills are moderately delayed, and he has been classified by respondent’s Committee on Special Education (CSE) as learning disabled. His classification is not disputed, and I do not review its appropriateness (Hiller v. Bd. of Ed. Brunswick CSD et al., 674 F.Supp. 73 [N.D. N.Y. 1987]).

        Petitioner’s son achieved a verbal IQ score of 102, a performance IQ score of 111, and a full scale IQ score of 107 on the WISC-III, placing him in the average range of cognitive functioning, in a January 1997 triennial psychological evaluation (Exhibit 3). He exhibited an age appropriate fund of general knowledge and breadth and depth of word meanings, while exhibiting significant weakness performing tasks using his short-term auditory memory. His perceptual motor functioning appeared to be normal. He was described as being quite sensitive to change in his environment, as well as being rather concerned about the opinion of others. The examining psychologist reported that the student was hindered by feelings of sadness and uncertainty, but was nevertheless a friendly, cooperative young man (Exhibit 3).

        In a 1997 update of the student’s social history, petitioner indicated that her son wanted to attend Xaverian because his brother attended that school (Exhibit 2). An occupational therapist recommended that the student receive occupational therapy twice per week to address a weakness in both hands that affected his ability to write (Exhibit 6). He has continued to receive such therapy, the need for which is not in dispute. A vocational assessment performed in 1997 revealed that petitioner’s son enjoyed working with his hands, and was interested in electronics and mechanical things (Exhibit 5).

        The student’s most recent educational evaluation prior to the CSE recommendation at issue in this proceeding was conducted on May 4, 1999, when he was in the 11th grade (Exhibit 4). The evaluator reported that petitioner’s son worked diligently and proceeded from task to task with ease. On the Woodcock-Johnson Tests of Achievement-Revised, the student achieved grade equivalents of 11.9 for word recognition and 12.0 for reading comprehension, and 9.4 for both math computation and word problems. The educational evaluator reported that the student’s receptive language skills were slightly better developed than his expressive language skills.

        For the 1998-99 school year, respondent’s CSE recommended that the student be enrolled in respondent’s Modified Instructional Services-I (MIS-I) program and receive counseling and occupational therapy. Petitioner apparently did not accept the recommendation, and enrolled her son in the Xaverian High School for the 1998-99 school year. On March 17, 1999, the student was observed in his conceptual physics class at Xaverian High School by one of respondent’s educational evaluators (Exhibit 7). The evaluator reported that the student appeared to be unable to settle down and engaged in a lot of cross conversation in the class of 25 students.

        On May 18, 1999, respondent’s CSE developed the student’s individualized education program (IEP) for the 1999-2000 school year (Exhibit 1). The CSE recommended that the child remain classified as learning disabled, and that he be placed in an MIS-I class with a 15:1 student:teacher ratio. It further recommended that he receive 30 minutes of individual counseling twice per week and 30 minutes of individual occupational therapy twice per week. The IEP provided for test modifications including extended time limits, separate testing locations, having test directions read to him, and his answers recorded in any manner. The IEP also provided that he was to use a calculator in math. In its written rationale for its recommendation, the CSE indicated that it believed that the student needed structure and small group instruction to function in an academic program.

        Petitioner did not accept the CSE’s recommendations, and requested an impartial hearing, which was conducted on April 14, 2000. The hearing officer rendered his decision on May 12, 2000 with a request for reading goals for the student. He found that the student’s IEP identified his strengths and weaknesses, and included appropriate annual goals and short-term objectives, with the exception of having no goals for reading. The hearing officer found that the recommended MIS-I program would have been appropriate to meet the student’s special educational needs. In doing so, he rejected petitioner’s contention that her son could not successfully function in a class of 15 students, and that he should not be enrolled in classes that included emotionally disturbed students. Having found that respondent had proven that it had offered an appropriate placement, the hearing officer did not rule upon the appropriateness of the educational services provided to the student by the Xaverian High School. He directed the CSE to prepare and provide him with appropriate annual goals for reading for the student. After reviewing the goals sent to him, the hearing officer rendered a final decision on July 6, 2000 upholding the CSE’s recommendations and denying petitioner’s request for an award of tuition reimbursement.

        Petitioner contends that the hearing officer's decision is not supported by the record. She asserts that respondent failed to demonstrate how her son’s IEP goals would have been achieved in the recommended MIS-I placement. Petitioner also asserts that respondent failed to demonstrate that her son would have been suitably grouped for instructional purposes with students having similar needs and ability. She asks that respondent be ordered to reimburse her for the cost of her son’s tuition at the private school during 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]).

        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]). To meet its burden, a board of education must show that the recommended program is reasonably calculated to confer educational benefits (Board of Educ. v. Rowley, 458 U.S. 176 [1982]). The recommended program must also be provided in the least restrictive environment (34 C.F.R. 300.550[b]; 8 NYCRR 200.6[a][1]).

        Petitioner asserts that the CSE’s recommendations are not supported by a current psychological evaluation. I find that her assertion is without merit for two reasons. First the 1997 psychological evaluation relied upon by the CSE was within the three-year period permitted by federal and state regulation. Second, I have examined the report of a private psychological evaluation performed in March 2000 (Exhibit K), and find that it does not provide significant new information about the student.

        An IEP must describe a student’s present levels of performance and indicate how his disability affects the student’s participation in the general curriculum (8 NYCRR 200.[c][2][i]). As noted above, this student’s disability affects his academic performance primarily with regard to mathematics and writing. There is a cursory description of the student’s standardized test scores for math on his IEP, and a cryptic notation that delays were noted in an informal assessment of his writing, which I find to be an inadequate description of how this student’s disability affects his academic performance.

        An IEP must have annual goals and short-term objectives that are related to the student’s educational deficits, and are written with sufficient precision to enable the student’s teachers to understand the CSE’s expectations and for the student’s parents to assess the student’s progress during the school year. In view of the student’s at or above grade level performance in reading, I do not share petitioner’s concern about the CSE’s initial failure to include any annual goal for silent reading on her son’s IEP. I also note that the director of the REACH program at Xaverian High School testified that the student’s disability did not affect his ability to read, rather it impaired his ability to remain focused (Transcript pp. 102-103).

        Petitioner asserts that her son’s IEP lacked appropriate goals for math, organization, and focusing. One of the goals is that the student "will improve his math skills". That language is too vague to be used in an annual goal. Two of its supporting objectives provide some specificity, while the third objective does not. Another goal is that the student "will improve concentration and attentional skills", which is also too vague to be a useful annual goal. One of the two supporting objectives relates to improving his organizational skills, but neither objective has specific criteria to measure the student’s progress. I find that these goals and objectives are deficient because they are poorly worded. In addition, I find that the IEP is deficient in not having a single goal or objective relating to the student’s writing deficiencies. While there is a goal for improving his fine motor control, that goal is for his occupational therapy, and does not address the weaknesses noted by the educational evaluator.

        An IEP must also provide for the use of appropriate special education services to afford the student a reasonable opportunity of achieving his or her annual goals. Even if this student’s annual goals had been more precisely drafted, I would nevertheless be required to find that respondent failed to demonstrate at the hearing how the recommended MIS-I program would have addressed this student’s special education needs and afforded him a reasonable opportunity of meeting those goals. Respondent rested its case after having three witnesses testify. The first witness provided some general information about the MIS-I classes in the Fort Hamilton High School. The second witness was an educational evaluator who noted that the student’s standardized test scores were too high to warrant placement in a MIS-I class. The evaluator acknowledged that the combination of Tourette's syndrome and ADHD might present learning difficulties which would afford a basis for placement in the MIS-I program. The evaluator testified that relatively small class size in the MIS-I program would help petitioner’s son to concentrate, but he provided no information about how the student’s IEP goals would be achieved in a MIS-I class.

        The last witness was a psychologist who reviewed the 1997 psychological report and noted that petitioner’s son might need to remain with one group of students and not move from class to class during the school day. It appears from the record that the MIS-I program at the Fort Hamilton High School is departmentalized, which would require the student to move from class to class. I note that he appears to have successfully participated in a departmentalized program at the Xaverian High School during 1999-2000, so I would not necessarily conclude that respondent’s program is inappropriate because it is departmentalized. However, the psychologist who testified on behalf of respondent failed to explain how the recommended program would meet the student’s needs. I find that respondent did not meet its burden of proof with regard to the appropriateness of the educational program that it had offered to provide to petitioner’s son.

        Petitioner bears the burden of proof with regard to the appropriateness of the services provided by the Xaverian High School during the 1999-2000 school year (Application of a Child with a Disability, Appeal No. 95-57; Application of the Board of Educ., Appeal No. 94-34; 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 which 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).

        Petitioner’s son was enrolled in the REACH program at the private school. The REACH program is for students with disabilities who are preparing to attend college. It provides small self-contained classes, as well as mainstream opportunities with resource room assistance, and an after-school program (Transcript p. 94). During the 1999-2000 school year, petitioner’s son was enrolled in mainstream English and art courses, a modified mainstream course involving films, special education classes for math and psychology, a reading skills class, and a resource room class. He had the assistance of a note taker and received teacher prepared outlines in his English class. In the reading skills class, the focus was on improving the student’s concentration and silent reading. In the resource room, the student received assistance in organizing, writing, and editing his written work, as well as assistance in solving math problems. The director of the REACH program testified that petitioner’s son had made great progress in that program, and would graduate from it with a Regents diploma. Respondent offers nothing to refute the director’s description of the program or the student’s success in the program. I find that petitioner has met her burden of proof concerning the appropriateness of the services provided to her son in the REACH program at Xaverian High School during the 1999-2000 school year.

        The third and final criterion for an award of tuition reimbursement is that the parent’s claim is supported by equitable considerations. There is nothing in the record to indicate that petitioner did not cooperate with respondent’s CSE. I find that petitioner has satisfied the third criterion for an award.

 

        THE APPEAL IS SUSTAINED.

        IT IS ORDERED that the hearing officer’s decision is hereby annulled; and

        IT IS FURTHER ORDERED that respondent shall reimburse petitioner for her expenditures for her son’s tuition for the REACH program at Xaverian High School during the 1999-2000 school year, upon petitioner’s submission of proof of payment for such expenditures.

 

 

 

Dated: Albany, New York __________________________
November 5, 2001 JOSEPH P. FREY