The State Education Department
State Review Officer
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
Neal Howard Rosenberg, Esq., attorney for petitioner
Hon. Michael D. Hess, Corporation Counsel, attorney for respondent, James C. Marchant, Esq., of counsel
Petitioner appeals from an impartial hearing officerís decision denying her reimbursement for the expense of unilaterally placing son in the Stephen Gaynor School (hereinafter Gaynor) for the 2000-2001 academic school year. The appeal must be sustained.
At the outset, I note that petitioner has asked me to consider the results of an evaluation of her son performed in January 2001, after the hearing in this matter had been completed. Respondent has not objected to petitionerís request, and I have therefore included the evaluation report in the record of this appeal.
Petitionerís child attended the Town School from the first grade until the conclusion of the third grade in the 1999-2000 school year. The Town School is a private regular education school that does not provide special education services (Transcript p. 59). In a letter dated June 13, 2000, the Town School informed petitioner that it could no longer meet her childís needs (Transcript p. 61; Exhibit B). Petitioner referred her son to respondentís Committee on Special Education (CSE) for an evaluation of possible learning delays and recommendation for services if needed (Exhibit 7).
The CSE apparently relied upon the report of a private psychologist who had evaluated the boy in May 1999, in lieu of having its own psychological evaluation performed. The psychologist reported that the student was "exquisitely sensitive about his limitations (both real and perceived) and responds in fearful and self-protective fashion whenever he senses that his self-esteem is about to be threatened". The student achieved a verbal IQ score of 102, a performance IQ score of 93, and a full-scale IQ score of 97, but the psychologist noted that the studentís performance during testing was too variable to have confidence in the accuracy of the IQ scores. The studentís receptive language skills were reported to be better than his expressive language skills. The psychologist opined that attention difficulties did not appear to contribute significantly to the studentís learning difficulties. Although the student had good short-term memory, he had difficulty holding on to new information long enough for it to be transferred to long-term memory. The psychologist suggested that teachers might have to present material several times or in different ways to make sure that the student fully grasped it. He reported that the boyís academic performance was also affected by low self-esteem, and asserted that testing had confirmed "the presence of a diagnosable learning disability". The psychologist also asserted that petitionerís son would be "best served" at a school for children with special needs, such as Gaynor (Exhibit 6).
On June 15, 2000, an educational evaluator assessed the studentís academic skills for the CSE. She reported that his writing sample was below normal, while his reading and listening comprehension skills were at a mid-third to beginning fourth grade level. His math skills were nearer to the beginning of the third grade. The evaluator noted that despite significant gains in some of his standardized test scores since the 1999 evaluation by the psychologist, the student continued to manifest signs of a learning disability. He had made very little improvement in spelling since the 1999 evaluation, and his skills were at an early second grade level. The evaluator reported that petitionerís son appeared to need much in the way of support and small group instruction in order to be consistent in his acquired learning and study skills (Exhibit 5).
On July 21, 2000, the CSE reviewed the results of the studentís evaluations, and recommended that he be classified as learning disabled. The CSE determined that the student required part-time instructional support, and recommended that he receive resource room services for one period per day and 30 minutes of group counseling once per week. The individualized education program (IEP) which the CSE prepared for the student provided that he would take tests in a separate location and have doubled time limits. There were annual goals for reading comprehension, math computation, and writing, as well as a goal to improve his coping skills on the studentís IEP (Exhibit 4). In a final notice of recommendation dated July 26, 2000, petitioner was offered a placement for her son at P.S. 151.
By letter dated August 9, 2000, petitioner requested a class profile and description of the proposed placement (Exhibit 3). The placement officer of Community School District responded on August 16, 2000 that a class profile for the resource room was not available at that time and included a general description of P.S. 151 (Exhibit 2). In a letter dated August 25, 2000, petitioner advised the placement officer that she did not have sufficient information to determine whether the proposed class would be appropriate for her son, and that she had determined that her sonís needs were too intensive to be addressed by a part-time special education placement. She indicated that her son would attend Gaynor for the 2000-01 school year (Exhibit 1).
Petitioner requested an impartial hearing, which began on October 20, 2000. The CSE chairpersonís designee testified that the proposed placement in the general education setting with resource room services and counseling would offer the student an appropriate program in the least restrictive setting. He also noted the CSE had failed to perform a classroom observation as part of its evaluation, and indicated that an observation would be conducted (Transcript p. 7-9).
A classroom observation was subsequently conducted on October 27, 2000 at Gaynor (Exhibit 12). Petitionerís son was in a class of eight students with a teacher and a teacherís assistant. The observer reported that the student was better able to maintain attention and focus while working independently than when he participated in a group. He noted that the studentís ability to keep up with the group appeared to be hindered by his impulsivity, inability to regulate his attention, and lack of motivation to function in a cooperative mode with the group (Exhibit 12).
The hearing resumed on November 12, 2000. The studentís teacher at Gaynor testified that the school was for learning disabled students, and had an enrollment of approximately 120 students. She described petitionerís child as requiring a great deal of individualized instruction and repetition in class. She testified that the studentís program at Gaynor included language remediation twice per week in individual sessions and once per week in a group of two. The student received individual math remediation twice per week, and occupational therapy twice per week. A language specialist worked with the students in the class three times per week. She opined that the studentís needs could not be met in a program such as the one recommended by the CSE because he would not receive the attention and support he required (Transcript pp. 25-26, 34-35).
A psychiatrist specializing in children and adolescents who had been seeing petitionerís child since February 1996 testified that the student had a significant learning disability, as well as poor self-esteem, mood swings, and some tendency towards irritability and temper outbursts (Transcript p. 46). He further testified that, since attending Gaynor, petitionerís child appeared to be more relaxed, and had better self esteem with a better frustration level (Transcript pp. 49-50). He opined that the program recommended by the CSE would not be appropriate to meet the studentís needs (Transcript p. 50). In response to a question by the hearing officer, the psychiatrist testified that the student could be diagnosed as having a generalized anxiety disorder, a dysthymic disorder involving depression and mood, and a mixed learning disorder (Transcript p. 54).
The head of the lower school at the Town School described the program petitionerís child was placed in while attending that school in a class of approximately twenty students with two teachers. She testified that petitionerís child had received individual instruction from a reading specialist in the class about fifteen minutes per day to assist with reading and writing, and that he was also privately tutored after school three days per week (Transcript pp. 73-74). She opined that the program recommended by the CSE would not have been appropriate, noting that the student had just given up and become very helpless in a regular education class of 20 students at the Town School (Transcript p. 76).
In her decision which was rendered on December 12, 2000, and corrected on December 18, 2000, the hearing officer found that the actions of the CSE were "mostly appropriate", and that the program which it had recommended was reasonably calculated to meet the studentís needs. She denied the parentís request for an award of tuition reimbursement, but directed respondent to pay for tutoring of petitionerís son twice per week.
A board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (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 ). 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 ). The recommended program must also be provided in the least restrictive environment (34 C.F.R. ß 300.550[b]; 8 NYCRR 200.6[a]). An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the childís needs, establishes annual goals and short-term instructional objectives that are related to the childís educational deficits, and provides for the use of appropriate special education services to address the childís special education needs (Application of a Child with a Disability, Appeal No. 93-9; Application of a Child with a Disability, Appeal No. 93-12).
Petitioner asserts that the CSEís recommendation must be set aside because the CSE failed to conduct a classroom observation of her son before making its recommendation. The Regulations of the Commissioner of Education require that a CSE conduct a classroom observation as part of its initial evaluation of a child referred to it (8 NYCRR 200.4[b][iv]). There is no dispute that the CSE failed to do so in this instance. Although an observation was performed after the hearing had begun, I note that respondent does not allege that the CSE reconvened to review the report of the observation. The CSEís failure to consider the observation report is particularly significant in this case because the CSEís observer described a child who appeared to have significant management needs even in a small classroom taught by a special education teacher. I find that the CSEís recommendation cannot be upheld because it was not based upon a complete evaluation, including a classroom observation (Application of a Child with a Handicapping Condition, 27 Ed Dept Rep 456; Application of a Child Suspected of Having a Handicapping Condition, Appeal No. 91-20; Application of a Child Suspected of Having a Disability, Appeal No. 94-41).
Although the CSE failed to conduct a complete evaluation, I note that the parties have agreed that petitionerís son is a child with a disability under the Individuals with Disabilities Education Act and Article 89 of the Education Law. I do not review the appropriateness of his classification as learning disabled (Hiller v. Bd. of Ed. of the Brunswick CSD et al., 674 F. Supp. 73 [N.D. N.Y., 1987]). However, there appears to be ample evidence that he could receive appropriate educational opportunities from a program of special education.
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 ). The failure of a parent to select a private school which has been approved by the state is not itself a bar to reimbursement (Florence County School Dist. Four v. Carter, 510 U.S. 7 ). As noted above, the board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE. I have found that respondent did not meet its burden of proof.
Petitioner bears the burden of proof with regard to the appropriateness of the services provided by Gaynor during the 2000-01 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, she 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 ; 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).
Having reviewed the evaluative data in the record and the testimony by the studentís teacher at Gaynor, I find that the private school offered an appropriate educational program to address the studentís special educational needs. His reading and math skills were delayed, although not so much as his writing skills. The teacherís testimony indicated that Gaynor provided specialized assistance to address the studentís weaknesses in each of those skills. Respondent's educational evaluator and its classroom observer each noted that the student required much extra support and would benefit from small classes. Gaynor provided both of those. I have considered respondentís argument with respect to the requirement that each child with a disability be placed in the least restrictive environment, including those placed in private schools whose parents seek tuition reimbursement (M.S. v. Bd. of Educ., 231 F.3d 96 [2d Cir. 2000]; Application of a Child with a Disability, Appeal No. 99-85). However, I find that this studentís placement in Gaynor is consistent with that requirement. Consequently, I find that petitioner has met her burden of proof with regard to the appropriateness of the services provided to her son by Gaynor.
In order to obtain an award of tuition reimbursement, petitioner must also show that her claim for an award is supported by equitable considerations. I note that at the hearing, the CSE chairpersonís representative acknowledged that petitioner had, to his knowledge, cooperated with the CSE. I have considered respondentís other arguments why an award should not be made, and I find that they are without merit.
THE APPEAL IS SUSTAINED.
IT IS ORDERED that the hearing officerís decision is hereby annulled; and
IT IS FURTHER ORDERED that respondent shall reimburse petitioner for her expenditures for her sonís tuition at the Stephen Gaynor School during the 2000-01 school year, upon petitionerís submission of proof of payment of such tuition.
Albany, New York
September 21, 2001
JOSEPH P. FREY