The State Education Department
State Review Officer

No. 00-069





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 Marykate O’Neil, Esq., of counsel

Neal Howard Rosenberg, Esq., attorney for respondent



        Petitioner, the Board of Education of the City School District of the City of New York, appeals from the decision of an impartial hearing officer which found that petitioner had failed to offer respondent’s son an appropriate educational program during the 1999-2000 school year, and which ordered petitioner to reimburse respondent for the expenses she incurred in placing her son as a day student in a private school. The appeal must be dismissed.

        At the time of the hearing, respondent's son was 11 years old and in the equivalent of the sixth grade at the Stephen Gaynor School (Gaynor), which does not have graded classes. He entered kindergarten at the Fran Seminary, another private school, where he remained for three years. Respondent initially enrolled her son in Gaynor for the 1996-97 school year. While at Gaynor during the 1997-98 school year, the student was apparently referred to petitioner’s Committee on Special Education (CSE). The CSE reportedly classified the student as learning disabled, and recommended that he be placed in a Modified Instructional Services I (MIS-I) program with the related services of speech/language therapy and counseling for the 1998-99 school year (Exhibit 4). However, respondent chose to continue her son’s unilateral enrollment at Gaynor.

        In March 1998, the student was evaluated by a school psychologist, who reported that he had achieved a verbal IQ score of 124, a performance IQ score of 119, and a full-scale IQ score of 123. The school psychologist noted that the student performed particularly well on portions of the IQ test directly related to school based activities, and that his language skills were better developed than most students his age. Nevertheless, respondent’s son was described as a tense and depressed individual whose projective drawings reflected a much younger child, or one with limited cognitive ability. He was also described as anxious because of a need to over strive in order to meet his high level of aspirations (Exhibit I). Some additional projective tests were administered in December 1998. The school psychologist who administered the tests reported that, unlike in his earlier testing, the student did not show signs of significant depression or excessive fantasy thinking. He concluded that counseling was not strongly indicated in order to enhance the student’s educational performance, but noted that a subtle perceptual distortion might be affecting his ability to read (Exhibit 3).

        A CSE educational evaluator assessed the student’s reading and math skills on the Woodcock-Johnson Psychoeducational Battery-Revised in December 1998. The results demonstrated that the student had poor reading decoding skills, was lacking in phonic, structural analysis and critical thinking skills, and that his instructional range in reading varied from grade equivalents of 2.0 to 3.0. His writing was also immature, and needed improvement. The student demonstrated good abstract reasoning skills in mathematics. His instructional range for math was from 3.9 to 5.8. The evaluator noted that the student’s attention span was adequate, but he gave up easily when a task appeared to be challenging (Exhibit 5). At the hearing in this proceeding, another of the CSE’s educational evaluators testified that the test results showed that the student had a learning disability that was strongly manifested in the areas of reading and writing. She opined that the student would benefit from placement in a small classroom setting, with specific goals to address his reading problems (Transcript p. 141).

        A speech and language evaluation was conducted on March 11, 1999 to determine whether the student had speech and language deficits that interfered with his educational progress. The evaluator noted that the CSE had recommended that the student receive speech/language therapy twice per week during the 1998-99 school year. The student scored in the 97th percentile on the standardized vocabulary and the expressive word picture vocabulary tests, demonstrated no articulation, voice, fluency or language deficits in receptive, expressive or pragmatic areas, and was able to use language appropriately in a variety of settings. She concluded that the student did not require the related service of speech/language therapy (Exhibit 4). In preparing her report, however, the evaluator did not observe the student in his classroom setting or consult with his speech/language therapist at Gaynor.

        On June 25, 1999, the CSE met to develop the student’s individualized education program (IEP) for the 1999-2000 school year. The parent member of the CSE (Education Law 4402[1][b][1][a][viii]) did not attend the CSE meeting, but participated in the meeting by speakerphone. The CSE recommended that the student remain classified as learning disabled, and it again recommended an MIS-I placement for him, with the related service of counseling. It did not recommend that speech/language therapy be provided. The CSE included the testing modifications of extended time limits, separate locations, and having directions and questions read on his IEP (Exhibit 1). In its written rationale, the CSE indicated that the student needed a special class placement for academic instruction, but could participate in mainstream nonacademic activities (Exhibit 2). The only mainstream activities identified on the IEP were lunch, assemblies, and "other" activities. By notice dated July 29, 1999, the CSE notified the parent that a specific placement would be available for her son at P.S. 131 (Exhibit B).

        Respondent was reportedly unable to make contact with the public school personnel during the rest of the summer about the proposed placement. She chose to continue her child’s placement at Gaynor. On September 28, 1999, she requested an impartial hearing seeking tuition reimbursement for the student’s placement at the private school during the 1999-2000 school year. The impartial hearing was held on November 4, 1999, March 15, 2000, May 9, 2000 and June 20, 2000. At the March 15, 2000 appearance, respondent asserted that the CSE was not properly constituted when it prepared her son’s IEP because the parent member had participated in the meeting by telephone and did not have access to the documents contained in the child’s CSE file. Respondent made a motion to preclude the Board of Education from defending the appropriateness of the CSE’s recommendations.

        The hearing officer heard testimony by the school psychologist member of the CSE. He confirmed that the parent member had appeared by speaker phone, and had introduced herself and said "something" during the meeting. He could not recall specifically what she had said, or whether she had addressed any comments directly to the child’s parent or to any member of the committee, but recalled only that her comments were expressed in favor of the proposed educational program. He "believed[d]" that the parent member was specifically asked if she agreed with the proposed classification and recommended placement for the child, and "believe[d]" that she was on the telephone during the entire conference (Transcript pp. 15-17). The witness added that the parent member was not precluded from asking questions or receiving information during the hearing. However, he acknowledged that the parent member did not have any portion of the child’s CSE file in her possession during the meeting, and no copies of the file documents had been sent to her because she did not request them (Transcript pp. 14-15). She could have requested that the documents be read to her during the CSE meeting, but there is no indication that she made that request.

        The child’s parent also testified about the CSE meeting. Respondent recalled that the parent member introduced herself at the end of the meeting, but could not recall that she had directly addressed respondent or any CSE member at any time during the meeting. The parent knew that a parent member would be participating in the conference, but she was never asked to consent to the parent member’s participation by telephone (Transcript p. 22).

        In an interim decision, dated May 5, 2000, the hearing officer ruled that, because the parent member did not have access to the student’s file during the meeting, she was not an equal participant, and could not have fulfilled her obligation to provide meaningful participation in developing the IEP. She was, in effect, absent from the meeting. The hearing officer held that the IEP was invalid because of the defect in the CSE’s composition. She ruled that the Board of Education would not be permitted to defend the CSE’s recommendations at the hearing, which would continue to afford respondent the opportunity to demonstrate the appropriateness of the program provided by Gaynor to her son.

        The hearing concluded on June 20, 2000. In her corrected decision dated August 28, 2000, the hearing officer found that the Board of Education had not satisfied its burden of proving the appropriateness of the educational program recommended by its CSE, for the reason set forth in her interim decision. She rejected petitioner’s assertion that Gaynor was inappropriate because it did not provide counseling services, but did provide speech/language services that the student did not need. The hearing officer noted that petitioner’s own psychologist did not believe that counseling was indicated at the time of the report, and that there was no evidence that the student needed any more emotional support than that which was already being provided by the private school. Furthermore, the hearing officer noted, because the student seemed to have some language processing difficulties, the services he received from Gaynor’s speech/language therapist conferred some educational benefit. The hearing officer also rejected the Board of Education’s assertion that the private school placement was inappropriate because it was not the least restrictive environment, and found that the student’s placement at Gaynor was appropriate. Finally, the hearing officer found that respondent’s claim for an award of tuition reimbursement was supported by equitable considerations. She ordered the Board of Education to reimburse the parent for the amount of money she paid to Gaynor for her son’s tuition for the 1999-2000 school year.

        Petitioner challenges the hearing officer’s interim decision nullifying the June 25, 1999 CSE recommendations as procedurally defective. The Board of Education asserts that the parent member listened on the telephone when various documents in the student’s file were summarized at the CSE meeting, and that she participated substantively by responding to questions asked and remaining on the telephone during the entire meeting. Petitioner argues that the parent member’s participation by telephone was functionally equivalent to having her attend the meeting in person. In any event, petitioner further argues that any procedural violation was de minimis and did not compromise the student’s right to an appropriate education, or seriously hamper the parent’s opportunity to participate in the formulation of her son’s IEP. Petitioner urges me to reject the hearing officer’s decision on these grounds.

        The issue of the parent member’s participation via teleconferencing was recently addressed in Application of a Child with a Disability, Appeal No. 00-043. As in that appeal, petitioner relies upon a memo to the field by former Assistant Commissioner Thomas B. Neveldine entitled The Use of Teleconferencing to Ensure Participation in Meetings to Develop the Individualized Education Program (I.E.P.), dated June 1992 (addendum to Respondent’s Hearing Memorandum of Law). The memo provides, in pertinent part, that:

      1. Telephone conferencing is an interactive process that allows participants to engage in discussions regarding a child’s education during the scheduled Committee meeting. A telephone discussion that occurs prior to or after the meeting does not meet the regulatory intent of participation at committee meetings.

      2. Participants in the telephone conference must be given every opportunity for active involvement throughout the entire Committee meeting. During the meeting, all participants, including the child’s teacher and the parents, must hear all information provided by Committee members and other participants and must be able to discuss all issues with the CSE/CPSE members.

      3. Individuals who participate through teleconferencing must have access to the same material available to all others involved in this process. The child’s teacher, for example, must be provided with copies of evaluative reports and other written material to be discussed by the Committee during the meeting. Similarly, the Committee should be provided with all relevant teacher and related service provider reports. The confidentiality of this information must be assessed according to the provision of subdivision 200.5(f) of the Regulations of the Commissioner of Education.

      4. Participation in Committee meetings through teleconferencing is a permissible alternative to having all members convene in a face-to-face meeting unless the parent objects. Where teleconferencing is offered as an alternative to a face-to-face CSE meeting, parents must be informed through prior notice that they have the right to participate in a face-to-face meeting of the committee with the child’s teacher in attendance.

        Although the field memo guidelines upon which petitioner relies do not have the force and effect of a regulation, I find that they are consistent with the policies underlying the Individuals with Disabilities Education Act (20 U.S.C. 1400, et seq.) and its state counterpart, Article 89 of the Education Law. As was noted in Application of a Child with a Disability, Appeal No. 00-043, preparation of a student’s IEP by an informed multidisciplinary team is at the heart of both statutes. While the federal statute does not require the participation of a parent member, the New York statute does, and there is no hierarchy among members of the CSE. Each member is expected to be aware of the student’s educational needs, and to participate fully and meaningfully in the development of an educational program that will adequately address those needs.

        Petitioner has failed to show compliance with the terms of the field memo upon which it relies. First, it does not allege that the parent member had copies of the evaluative material that were reportedly discussed at the CSE meeting, or indeed, that she had read those reports prior to the CSE meeting. It has also not refuted the parent’s testimony that she was not advised of her right to a face-to-face meeting with all the members of the CSE. I concur with the hearing officer’s determination that the parent member did not meaningfully participate in the CSE meeting, and that as a result, the CSE was not validly composed when it prepared the child’s IEP on June 25, 1999. Therefore, I find, as did the hearing officer, that the IEP that was prepared at that meeting was a nullity (Application of a Child with a Disability, Appeal No. 93-17; Application of a Child with a Disability, Appeal No. 93-11; Application of a Child with a Handicapping Condition, Appeal No. 92-31).

        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. Dept. of Educ., 471 U.S. 359 [1985]). I have found that the CSE’s recommendations were a nullity. Consequently, I must also find that the Board of Education has failed to meet its burden of proof with regard to the appropriateness of the services that it offered to provide to the child.

        The student’s parent bears the burden of proof with regard to the appropriateness of the services provided by Gaynor 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; Application of the Board of Educ., Appeal No. 93-34). In order to meet that burden, the parent must show that the private school offered an educational program, which met her child’s special education needs (Burlington, 471 U.S. at 370; Application of a Child with a Disability, Appeal No. 94-29). The private school need not be approved by the state educational agency to provide instruction to children with disabilities (Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 [1993]), nor must it employ certified special education teachers, or have its own IEP for the student (Application of a Child with a Disability, Appeal No. 94-20).

        There is no dispute about the student’s classification as learning disabled, 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]). His disability is manifested primarily by difficulty in reading and writing. He also has difficulty with auditory processing and with retrieving words. At Gaynor, he was placed in a full-time special educational environment with students who had similar functional needs. He was taught in a small classroom setting of 9:2, except in the areas of reading and mathematics, where he was taught with only four other students. In addition to the 50-minute reading instruction he received from the head teacher five times each week, the child received 30 minutes of instruction each week from a reading specialist in a 1:1 setting. Multisensory instructional techniques were used throughout the curriculum, including the Orton-Gillingham method for reading to assist the student with his decoding, reading, writing and comprehension skills.

        The student also received 60 minutes of speech/language therapy twice each week, even though those services were eliminated from his IEP that year. The therapist helped the student with his writing and, through categorization and word games, assisted him in retrieving words and processing and expressing ideas. The student did not receive any psychological counseling to address his anxiety, but the small classroom setting allowed the teacher sufficient time to address those concerns directly and help alleviate the student’s anxiety. Upon reviewing the testimony of the student’s teacher at Gaynor, I find that her description of the student’s progress in reading and language arts indicates that the private school addressed the student’s academic needs. He was reading at a third grade level and was decoding with greater fluency than he had at the beginning of the school year when he was reading instructionally at a mid-second grade level.

        Petitioner’s argument that the student was not challenged academically at Gaynor because he was still reading at a substandard level after nearly four years at Gaynor is not persuasive. Considering the student’s severe learning deficiencies, which petitioner does not dispute, it is hardly reasonable to expect that his reading skills would progress at a greater rate, even with a more intensive instructional program. Indeed, the record shows that, when the student began at Gaynor in 1996, he could not read at all. His teacher noted that he had made the most progress in reading during the 1999-2000 school year. She described the progress as slow and steady, but also substantial. Additionally, the student had progressed in writing. At the time of the hearing, he was learning to write combined sentences and to use describers and expanders, compared to the simple straightforward sentences he wrote at the beginning of the school year.

        I further reject petitioner’s contention that the services provided by Gaynor were inappropriate because the student did not receive counseling services as the CSE had recommended, and conversely received speech/language therapy even though he was not speech-impaired. As noted above, petitioner’s school psychologist reported that the student was anxious, but he opined that counseling was not strongly indicated and did not make any recommendation for those services. I find that the supportive services that the speech/language therapist provided helped to address the student’s processing deficits, the existence of which petitioner does not deny.

        The third criterion for an award of tuition reimbursement is whether the parent’s claim is supported by equitable considerations. There is no indication in the record that respondent failed to cooperate with the CSE. Accordingly, I find that equitable considerations support the parent’s claim for tuition reimbursement. Having found that the parent has prevailed on all three criteria for an award of tuition reimbursement, I must dismiss petitioner’s appeal.






Dated: Albany, New York __________________________
October 1, 2001 ROBERT G. BENTLEY