The State Education Department
State Review Officer

No. 00-081





Application of a CHILD WITH A DISABILITY, by his parents, 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

Sonia Mendez-Castro, Esq., attorney for petitioner

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




        Petitioners appeal from an impartial hearing officer's decision which found that respondent had offered to provide an appropriate educational program to petitioners' son during the 1999-2000 school year. In view of that finding, the hearing officer denied petitioners' request for an order requiring the Board of Education to reimburse petitioners for the cost of their son's tuition at the Shema Koleinu School. The appeal must be sustained.

        Petitioners' son was a seven-year-old student at the Shema Koleinu School, a non-state approved private special education school, when the hearing began. The child has been diagnosed as having a pervasive developmental disorder, not otherwise specified (PDD-NOS), mild mental retardation, and an unspecified learning disorder. He has been classified as emotionally disturbed/speech impaired.

        Petitioners' son first attended a program called Step-by-Step when he was two-years-old. The child then attended the Hebrew Academy for Special Children (HASC) from September 1995 until June 1997. While attending that pre-school the child was diagnosed with PDD and Attention Deficit Disorder (ADD). He was in a highly structured learning environment, and he received speech therapy and occupational therapy, as per his individualized education program (IEP). The child was making progress in all areas while at HASC, but it was noted that he had a high level of distractibility that compromised his abilities (Exhibit 3).

        The child's psychological report from HASC, dated December 1996, noted that the child's teachers at the pre-school described him as aggressive at times, with delays in cognitive areas, and socially inappropriate behavior. The child was able to respond to highly structured settings, but not consistently or for a significant period of time. He reportedly had inconsistent eye contact and somewhat echolalic speech. His major strength was noted to be that he is a loving, affectionate child. It was difficult to formally test the child because he was unable to sit in a chair during most of the testing. On the Stanford-Binet test, the child achieved a Verbal Reasoning SAS of 70, a Quantitative Reasoning SAS of 72, and a Short Term Memory SAS of 60. The psychologist reported that the student’s composite IQ score of 60 placed him in the mildly retarded range of intelligence for his age. The child verbally identified three picture vocabulary items, and he was unable to respond verbally to any comprehension questions, so his abilities ranged from mildly retarded to the lowest limit of the borderline range. In the visual/spatial area his abilities were in the lower limits of the borderline range, as he was able to complete a formboard, but he was unable to match dots on dice or count the dots on dice in any way (Exhibit 5).

        Testing on the Bayley Scales, conducted in December of 1998, showed the child's functional levels of 20 months on the Mental Scale and 22 months on the Psychomotor Scale. The Vineland Adaptive Behavior Scales-Survey Form showed behavior functioning in the low range for all areas. The child achieved scores of 54 in Communication, 57 in Daily Living Skills, 64 in Socialization, 49 in Motor Skills, and 52 in Adaptive Behavior. The child could speak in simple sentences and follow simple directions, but he could not speak in full sentences, state his name, tell time, feed himself, use the toilet by himself, or cut with scissors (Exhibit 5).

        The child began attending the League School in September of 1997 when he aged out of pre-school. The League School is a state-approved nonpublic school that the child attended for two academic years, until June 1999. He was in a classroom designed for students classified as emotionally disturbed with a student : staff ratio of 6:1:1. In an educational progress report from the League School dated December 1998, the child was described as being social, with a low interest in academic and cognitive tasks. He manifested delays in his expressive and receptive skills (Exhibit 6). Although the teachers at the League School reported that the child was making little progress, a Functional Behavioral Assessment (FBA) was not considered, and an individualized Behavior Intervention Plan (BIP) was not developed. The educational evaluation stated that the student required a highly structured and small classroom with a consistent schedule and behavior management, as well as programmed socialization with close teacher supervision (Exhibit 6).

        A League School administrator testified that the child's strengths were social and his weaknesses were in focusing on academics (June 5, 2000 Transcript p. 35). The child could follow routines and he made some slow progress, especially in behavioral relatedness and expressive language, but he was easily distracted and disruptive in the classroom (June 5, 2000 Transcript p. 37). A League School administrator felt that the child’s academic needs could be addressed in a small group setting, since his strength was in social relatedness (June 5, 2000 Transcript p. 40).

        At the League School the child was placed in a classroom with five other emotionally disturbed children, a teacher, and a paraprofessional (August 2, 2000 Transcript p. 16). The class was broken up into smaller groups of two or three students for academic work (June 5, 2000 Transcript p. 40). The child took part in a weekly social skills class that was led by a speech and language pathologist (June 5, 2000 Transcript p. 42). Meetings were held at least twice a year by the boy’s service providers to discuss the child's progress (August 2, 2000 Transcript p. 12). The speech pathologist, the occupational therapist, two supervisors for the room, the teacher, and the paraprofessional were present at those meetings. The student’s teacher testified that in the spring of 1999, she and other staff members noticed that something in the child "clicked," and he was better able to complete tasks and master his IEP goals (August 2, 2000 Transcript p. 13).

        Respondent’s Committee on Special Education (CSE) held its annual review regarding the child on March 16, 1999. The CSE recommended that the child continue to be classified as emotionally disturbed/speech impaired, and that he remain at the League School in a class with a 6:1:1 ratio for the 1999-2000 school year. It recommended the related services of group and individual speech/language therapy and individual occupational therapy. In addition, adaptive physical education was recommended. The child’s IEP included a behavior intervention plan. The CSE recommended that the boy receive a 12-month program that included attendance at HASC in Parksville during the summer of 1999 (Exhibit 10). The CSE recommended that the student continue to attend the League School because it believed that he had received appropriate services there, and that he continued to need its therapeutic environment (Exhibit 1).

        The child's mother indicated at the March 1999 IEP meeting that she was concerned about her son’s lack of progress and she was thinking about placing her child at Shema Koleinu (June 5, 2000 Transcript p. 23). She was reportedly interested in Shema Koleinu for cultural reasons and because of the one-to-one attention available at the school through its applied behavior analysis (ABA) program (June 5, 2000 Transcript p. 26). The League School did not provide an ABA program.

        Petitioners rejected the CSE's recommendation that the child continue to attend the League School. They unilaterally enrolled their child at Shema Koleinu, which offers a program for students of the Jewish culture. The school also offers one-to-one instruction, as ABA is applied throughout the school day (August 2, 2000 Transcript p. 55). A teacher from Shema Koleinu testified that the child required a structured individualized approach to keep focused (August 2, 2000 Transcript p. 56). At the school, the child met once per week with a large peer group for social interaction (August 2, 2000 Transcript p. 96). The teacher from Shema Koleinu also testified that the child had been unable to read or tell time when he arrived at the school (August 2, 2000 Transcript pp. 57-58), but had learned to do both while attending Shema Koleinu (August 2, 2000 Transcript pp. 74-75).

        An impartial hearing was requested by petitioners. The hearing was held on June 5, 2000 and August 2, 2000, after several previous adjournments. On September 27, 2000, the hearing officer issued his decision finding that respondent had offered to provide an appropriate educational program to petitioners’ son. She further found that the one-to-one instruction provided to the child by the Shema Koleinu School was inconsistent with the requirement that the student be educated in the least restrictive environment. Accordingly, the hearing officer denied petitioners' request for tuition reimbursement.

        Petitioners challenge the hearing officer's decision finding that the Board of Education had offered to provide an appropriate program for their child. Among other things, they contend that there is sufficient evidence in the record to place in doubt the appropriateness of their son’s classification as emotionally disturbed. However, I find that there is no evidence in the record that petitioners raised the issue of the appropriateness of their son’s classification at the hearing. Accordingly, I must decline to review the appropriateness of the boy’s classification because the issue was not raised below (Application of a Child with a Disability, Appeal No. 90-60).

        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 inappropriate or inadequate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (School Committee of the Town of Burlington v Dept. of Educ. of Massachusetts, 471 U.S. 359 [1985]). The fact that the facility selected by the parents to provide special education services to their 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 Dist. Four v Carter, 510 U.S. 7 [1993]).

        A board of education bears the burden of establishing the appropriateness of the program which its CSE recommended (Application of a Child Suspected of Having 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]). In order to meet its burden, a board of education must demonstrate that the recommended program is reasonably calculated to allow the child to receive educational benefits (Board of Educ. of the Hendrick Husdon Central School Dist. v Rowley, 458 U.S. 176 [1982]). Federal and state regulations require that children with disabilities be educated in the least restrictive environment (34 C.F.R. 300.550[b]; 8 NYCRR 200.6[a][1]). The board of education must also show that the child was suitably grouped for instructional purposes with children having similar needs and abilities with respect to academic achievement, learning characteristics, social and physical development, and management needs (8 NYCRR 200.6[a][3]; Application of a Child with a Handicapping Condition, 29 Ed. Dept. Rep. 225 [1990]). Social development is to be considered to assure that social interaction is beneficial to each student in their social growth (8 NYCRR 200.6[a][3][ii]).

        An appropriate program begins with an IEP which accurately reflects the results of the child's evaluations to identify the child's needs, provides for the use of appropriate special education services to address the child's special educational 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. 93-12; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).

        Few of the child’s IEP goals were mastered during the 1998-99 school year at the League School (August 2, 2000 Transcript pp. 17-44). Although the child achieved very little progress toward mastering his goals and objectives, the CSE did not alter the student’s program so that he could reasonably achieve academic success. The CSE recommended at its annual review that the child should remain at the League School in a small group setting. The child’s teacher at the League School noted some progress in academic skills, but his academic progress was slow (August 2, 2000 Transcript p. 28). The child’s mother expressed her concern about her child’s slow academic progress in the League School program (August 2, 2000 Transcript p. 102), yet the program for the child was still not changed when a new IEP was developed.

        The Assistant Principal of League School testified that the child was "disruptive usually on a daily basis regarding academic activities" (June 5, 2000 Testimony p. 36). The educational evaluation prepared by the child’s teacher noted that the child "demonstrates severely impaired behaviors which impede both his ability to learn and his ability to form age-appropriate interpersonal relationships" (Exhibit 6). Given that the child was having problems achieving at the League School, a functional behavioral analysis, and if necessary, a behavioral intervention plan should have been developed to address the child’s behavior that was impacting upon his academic progress. The child’s lack of academic progress should not have been attributed to his behavior and slow rate of learning without first adjusting the teachers’ instructional strategy. I find that respondent failed to meet its burden of proving that it offered to provide a free appropriate public education to petitioners’ child for the 1999-2000 school year.

        With respect to the second criterion for an award of reimbursement, a student’s parents bear the burden of proving the appropriateness of the educational services selected (Application of a Child with a Disability, Appeal No. 97-57; Application of a Child with a Disability, Appeal No. 94-29; Appeal of the Board of Educ., Appeal No. 93-34). In order to meet that burden, the parents must show that the educational services met the student’s special education needs (Burlington, 471 U.S. at 370 [1985]; Application of a Child with a Disability, Appeal No. 94-29).

        I find that Shema Koleinu was an appropriate placement for petitioners’ child. Upon reviewing the testimony by the child’s teacher at Shema Koleinu, I find that her description of the classroom, the instructional methods, and the child’s progress indicate that the private school addressed the child’s academic needs. Based on testimony presented at the hearing, the child made significant progress in his ABA program at Shema Koleinu. The child developed functional academic skills like identifying sight words, counting, and telling time while attending Shema Koleinu (August 2, 2000 Transcript p. 75). Shema Koleinu has also put the child on a behavior plan with five rules, and the child reportedly knows the difference between right and wrong (August 2, 2000 Transcript p. 86). The child has also learned to become more independent as he now raises his hand, asks to use the hall pass, goes to the bathroom by himself, and uses the vending machine with visual supervision (August 2, 2000 Transcript p. 67).

        The least restrictive environment (LRE) requirement does apply to unilateral parental placements (M.S. on behalf of S.S. v. Board of Educ. of the City School Dist. of the City of Yonkers, 2000 U.S. App. LEXIS 26848 [2d Cir., 2000]). Nevertheless, the LRE requirement must be balanced against the requirement that each student receive an appropriate education (Briggs v. Board of Educ. of the State of Connecticut, 882 F.2d 688 [2d Cir., 1989]). In applying the LRE requirement in this case, I have considered the child's needs, and I find that his placement in Shema Koleinu is consistent with the LRE requirement. The past academic history of the child indicates that he needs direct, one-on-one attention to achieve academic success, and Shema Koleinu provides that to the child through discrete trial training. The director of Shema Koleinu testified that the student is not yet ready for large group interaction because he is not able to concentrate fully and follow directions without one-to-one attention (August 2, 2000 Transcript p. 95). Based on the information before me, I find that petitioners have met their burden of proof with respect to the appropriateness of the educational services provided by Shema Koleinu.

        The third criterion for an award of tuition reimbursement is whether equitable considerations support the parents’ claim. There is no indication in the record that petitioners failed to cooperate with the CSE. The child’s mother expressed her concern with the program at League School and only enrolled her child in Shema Koleinu after her child made very little progress in his two years at League School. Accordingly, I find that equitable considerations support the parents’ claim for tuition reimbursement. Having found that petitioners have prevailed on all three criteria for an award of tuition reimbursement, I must sustain petitioners’ appeal.




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


        IT IS FURTHER ORDERED that respondent shall reimburse petitioners for their expenditures for the child’s tuition at the Shema Koleinu School during the 1999-2000 school year, upon petitioners’ submission of proof of payment for such expenditures.




Dated: Albany, New York __________________________
August  8, 2001 JOSEPH P. FREY