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
Regina Skyer, Esq., attorney for petitioner
Hon. Michael D. Hess, Corporation Counsel, attorney for respondent, Michael E. DeLarco, Esq., of counsel
Petitioner appeals from the decision of an impartial hearing officer which denied his request for reimbursement for the cost of his son's tuition in the Parents for Torah for All Children (P'TACH) program at Yeshiva University High School for the 1999-2000 academic year. The appeal must be dismissed.
Preliminarily, I will address the procedural issue raised in this appeal. Petitioner has attached two documents to his petition, one of which was not included in the record before the hearing officer. The document which was not part of the record before the hearing officer is the student's individualized education program (IEP) for the 2000-01 school year. Respondent objects to the consideration of the IEP because it was available at the time of the hearing. Documentary evidence not presented at a hearing may be considered in an appeal from a hearing officer's decision, if such evidence was unavailable at the time of the hearing, or the record would be incomplete without the evidence (Application of a Child with a Disability, Appeal No. 95-41). The IEP, developed by respondentís Committee on Special Education (CSE) on June 23, 2000, provides evidence concerning the progress made by the student while attending the P'TACH program. I will accept the 2000-01 IEP for the limited purpose of evaluating the student's progress during the 1999-2000 school year. I note that the second document annexed to the petition, to which respondent appears to object, is an evaluation report that was part of the record of the hearing.
Petitionerís son was a 17-year-old student attending the P'TACH program when the impartial hearing began in September 2000. The P'TACH program has not been approved by the New York State Education Department to provide education to students with disabilities. The student was initially classified by the CSE of Community School District 22 (CSD 22) as learning disabled in August 1997. His classification is not in dispute in this appeal (Exhibit 1).
The student began having reading decoding and comprehension difficulties in both English and Hebrew when he was in the fourth grade (Exhibit 1 p. 17). He has reportedly received resource room services and private tutoring since that time. In 1997, when the student was 13 years old and in the eighth grade at Derech Hatorah School, he was evaluated at the Learning Center at the Manhattan Eye, Ear and Throat Hospital (Learning Center) because his parents were concerned about his academic difficulties. The evaluators reported that the student was quiet and cooperative, but somewhat nervous and fidgety. They noted that he worked quickly and impulsively, and needed to have directions repeated. On the Weschler Intelligence Scale for Children - III (WISC-III), the student achieved a verbal IQ score of 88, a performance IQ score of 79 and a full scale IQ score of 82, placing him in the low average range of intellectual functioning. Academically, he was achieving at a 4.4 to 6.7 grade level in reading, a 5.8 to 6.4 grade level in math, and a 5.2 grade level in spelling. However, the evaluators opined that the student had the potential for at least high average functioning, noting that the scatter in the student's scores was impacted by the student's impulsivity, fidgetiness, difficulty in following directions, difficulty with verbal expression, perceptual difficulties, and weak concentration and attention. They concluded that the student had a learning disability that affected all academic and language skill areas. The evaluators recommended that the student receive a speech/language evaluation and that he be re-evaluated in one year in order to assess his progress. They recommended that the student receive daily remediation in a resource room as well as after school to address the specific deficit areas which were below grade level (Exhibit 1). Petitioner referred his son to the CSE of CSD 22 in early August 1997.
On August 28, 1997, the CSE of CSD 22 classified the student as learning disabled. It recommended that he be placed in a 15:1 Modified Instructional Services-I (MIS-I) class for the ninth grade during the 1997-98 school year. Instead, petitioner placed his son in the P'TACH program. The student continued to attend the P'TACH program for the 1998-99 school year.
By letter dated May 5, 1999, the CSE of Community School District 6 (CSD 6) advised the student's father that it would be conducting his son's annual review, and requested petitioner's consent to observe the student, conduct any required evaluations, and obtain access to the student's educational records, so that the CSE would have adequate current information about the student to recommend a program for him (Exhibit 3). The record does not reveal why the student's case had been transferred to the CSE of CSD 6. On May 5, 1999, May 11, 1999, May 18, 1999, and May 25, 1999, the CSE of CSD 6 sent notices to the parent advising him that appointments had been scheduled for his son's evaluations (Exhibit 6, pp. 1 - 4). Petitioner testified that each time he received an appointment letter, he contacted the CSE (Transcript pp. 72-79). By letter dated June 16, 1999, the CSE chairperson advised petitioner of the attempts it had made to evaluate his son and indicated that his son's case would be closed if he did not contact the CSE by June 30, 1999 (Exhibit 6, p. 5). Petitioner testified that in response to the letter, he called the telephone number provided on the letter and left a message indicating that his son would not be available until after the summer (Transcript p. 81).
The student was not evaluated by the CSE of CSD 6, and his case was transferred to respondentís high school unit in July 1999 (Transcript p. 32). In a letter dated August 20, 1998, the student's father advised the CSE of CSD 6 that although he had promptly responded to its June 23, 1998 telephone message, it had failed to return his call (Exhibit 10). He also indicated that he received the request for "review of IEP" dated June 30, 1998. The student's father advised the CSE that the request for an IEP was redundant because his son had been evaluated by the CSE of CSD 22, eight months earlier. He suggested that the CSE of CSD 6 obtain the evaluation information from the CSE of CSD 22, which included the evaluation from the Learning Center which had already been provided to the latter CSE.
The student continued in the P'TACH program for the 1999-2000 school year, at petitionerís expense. On February 15, 2000, petitioner requested an impartial hearing seeking reimbursement for his son's tuition in the P'TACH program for the 1999-2000 school year (Exhibit 2).
The impartial hearing was held on September 12, 25 and October 23, 2000. The hearing officer rendered his decision on November 15, 2000. He found that there was insufficient evidence in the record to determine the student's functioning levels and rate of progress in the P'TACH program. He also was unable to determine whether the student benefited from the program because of the insufficient record. Therefore, the hearing officer found that the parent did not meet his burden of proving that the P'TACH program was an appropriate placement for his son. Accordingly, he denied petitioner's request for reimbursement.
Petitioner appeals from the hearing officer's decision. He claims that the hearing officer erred in determining that he did not prove that the P'TACH program was appropriate to meet his son's special education needs during the 1999-2000 school year. Respondent acknowledges that it did not offer a placement to the student for the school year in question, but it contends that it was precluded from doing so by petitioner's failure to cooperate with the CSE of CSD 6.
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 ). 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 ).
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]). As noted above, respondent concedes that its CSE did not evaluate the student and that it did not offer a FAPE to the student for the 1999-2000 school year. Therefore, I am compelled to find that petitioner has prevailed with respect to the first criterion for an award of tuition reimbursement.
Petitioner bears the burden of proof with regard to the appropriateness of the educational services he obtained for his son at PíTACH (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, 471 U.S. at 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).
Petitioner asserts that the testimony of the educational director of the P'TACH program establishes that the program was appropriate for his son. I disagree. The educational director of the P'TACH program testified that the student had difficulty with reading, organization and higher level thinking skills. He testified about the special education techniques that were used in the program, such as small class sizes, multisensory teaching and graphic organizers (Transcript p. 104). He also testified the student received a second period of English each day to address his reading deficits (Transcript p. 108). However, the educational director failed to explain how the P'TACH program would address the student's other deficit areas. Though he indicated that the student's organizational skills required regular support, he did not explain how the program would address those needs other than through the use of graphic organizers. Additionally, despite noting that the student's math skills were at least two years below grade level, the educational director did not indicate how the student's math needs were being addressed in the program. In fact, he noted that the student had passed the June 1998 Regents math competency test with a 66, and therefore was moved to the next level math class (Transcript p. 111). I further note that in the 1997 private evaluation, the evaluators concluded that the student had a learning disability that affected all academic and language skill areas. There is no information in the record demonstrating how the program addressed the student's language or other areas of deficit.
I also am unable to find, as petitioner asserts, that the June 23, 2000 IEP provides quantifiable proof of the progress the student made in the P'TACH program. The IEP merely sets forth a broad instructional range for each skill tested. There is no information in the record explaining how the instructional grade levels, which range from two to six years, demonstrate progress. It is difficult to ascertain the student's level of functioning at the end of the 1999-2000 school year because specific test scores are not used on the IEP. Moreover, there is no evidence of what his performance levels were at the beginning of the 1999-2000 school year. Based upon the information before me, I find that petitioner has not satisfied the second criterion for an award of tuition reimbursement. Having reached this conclusion, it is not necessary that I address the issue of whether equitable considerations support petitioner's claim for tuition reimbursement.
THE APPEAL IS DISMISSED.
Albany, New York
November 26, 2001
JOSEPH P. FREY