The State Education Department
State Review Officer
Application of the BOARD OF EDUCATION OF THE NEW PALTZ CENTRAL SCHOOL DISTRICT for review of a determination of a hearing officer relating to the provision of educational services to a child with a disability
Shaw & Perelson, LLP, attorney for petitioner, Lisa S. Rusk, Esq., of counsel
Law Offices of William T. LaVelle, P.C. attorney for respondents, William T. LaVelle, Esq., of counsel
Petitioner, the Board of Education of the New Paltz Central School District, appeals from an impartial hearing officerís decision ordering it to reimburse respondents for tuition and certain related expenses for their sonís attendance at the Pine Ridge School (Pine Ridge) for the 1999-2000 school year. Respondents cross-appeal from the hearing officerís decision denying their request for tuition reimbursement for the studentís attendance at a summer 1999 remediation program at Pine Ridge. The appeal must be dismissed. The cross-appeal must also be dismissed.
At the outset, I must address two procedural issues. First, petitioner argues that respondentsí answer and cross-appeal should be dismissed because it was not verified pursuant to 8 NYCRR 275.3(a), 275.5, 279.1. Respondents should have served the petitioner with a verified copy of their answer and cross-appeal. However, they did file a verified copy of that pleading with the State Education Department. Consequently, I will not dismiss respondentsí pleading for the reason urged by petitioner (Application of the Board of Educ., Appeal No. 99-12).
Second, respondents request that I accept four documents annexed to their answer and cross-appeal that were not part of the record before the hearing officer. These documents include petitionerís November 1, 1999 letter to respondents giving them notice of the approval of their sonís 1999-2000 individualized education program (IEP), petitionerís letter to respondents giving them notice of a February 10, 2000 Committee on Special Education (CSE) meeting, the 2000-2001 IEP, and petitionerís letter to respondents giving them notice of the approval of the 2000-2001 IEP. Documentary evidence not presented at the hearing may be considered in an appeal from a hearing officer's decision, if such evidence were unavailable at the time of the hearing or if the record would be incomplete without the evidence (Application of the Board of Educ., Appeal No. 00-042; Application of a Child with a Disability, Appeal No. 98-55; Application of a Child with a Disability, Appeal No. 95-41).
I find that the documents submitted by respondents will make the record complete. The notice showing the date that petitioner approved the 1999-2000 IEP is relevant to the issue of timeliness. The 2000-2001 IEP and related documents are relevant as they provide information about how petitioner acted upon its receipt and review of the evaluations requested by the CSE at its June 16, 1999 meeting. The 2000-2001 IEP also includes a statement by the petitioner as to the how the student performed at Pine Ridge during the 1999-2000 school year.
Respondentsí son was 17 years old and attending the Pine Ridge School in Williston, Vermont for his eleventh year of education at the commencement of the hearing. Pine Ridge is a residential school and provides learning disabled students with a secondary education in an ungraded setting. It has not been approved by the New York State Education Department to instruct children with disabilities. It has been accredited by the State of Vermont and the New England Association of Schools and issues a high school diploma.
The student had previously attended a number of different public and private non-special education schools, including petitionerís, with limited success. Numerous learning difficulties, behavioral problems, and organizational and motor difficulties have characterized the studentís educational history at those schools. The student enrolled in the Pine Ridge summer remedial program in July 1999, and its program for the 1999-2000 school year. Just prior to that, he attended the Oakwood Friends School for the tenth grade where he was enrolled in a regular education program and received resource room type assistance at the schoolís Learning Center.
Respondentís CSE classified the student as a student with a learning disability and as other health impaired because of attention deficit hyperactivity disorder (ADHD) on or about August 1998, just prior to the beginning of his tenth grade year at Oakwood. At the time of classification, the student was receiving counseling from a professional counselor and medication management for depression by a psychiatrist (Exhibit P-9). The student had achieved a verbal IQ score of 111, a performance IQ score of 96, and a full-scale IQ score of 104 on the Wechsler Intelligence Scale for Children III. While the studentís standard scores for reading and math achievement were commensurate with his cognitive skills, his writing skills were significantly below expectation (Exhibit SD-7). The student had been diagnosed with ADHD during the 1991-1992 school year, when he was in the third grade (Exhibit SD-16). He has remained classified as learning disabled and other health impaired, and his classification is not in dispute in this proceeding.
Petitioner conducted a number of evaluations in preparation for the studentís annual review for the 1999-2000 school year. A speech/language evaluation was done in January 1999 (Exhibit SD-14). The evaluator concluded that there was no reason to recommend speech/language services for the student. Problems with graphomotor skills (handwriting) were noted in a February 1999 assistive technology evaluation (Exhibit SD-13). The evaluator also noted that poor spelling hindered the studentís writing, and that he also needed assistance in the organization and development of his written work. She suggested that voice activated computer software might assist the student with his written expression.
The Ulster County BOCES completed an Occupational Therapy Educational Assessment in March of 1999 at petitionerís request (Exhibit SD-13). The student scored below average in fine motor and visual integration skills, and the results indicated a difficulty in spatial planning and analysis. The evaluation also showed that the student had below average visual sequential memory and organization, problems with posture and distractibility, and a possible difficulty with sensory processing. The evaluator did not recommend occupational therapy services, but suggested a number of strategies to address the studentís problems in writing, organization, and planning.
Petitioner referred the student for a psychiatric examination to determine the independence and/or interconnectedness of the studentís depression and learning disabilities. In a report that petitioner apparently did not receive until April 16, 1999, the examining psychiatrist indicated that the student presented with depression, anxiety, and was socially awkward (Exhibit SD-11). He noted that the student was taking Luvox for social anxiety and depression and Adderall for his attention deficit, and that those medications had been helping him. The psychiatrist diagnosed the student with ADHD, a learning disorder, and dysthymia with major depressive features and anxiety disorder features. He opined that the studentís dysthymia was partly reactive to his learning disability and partly primary. The psychiatrist recommended a neuropsychological examination to ascertain how much of the studentís depression was secondary to his learning disability and how much was primary, and to help delineate the areas of the studentís difficulties, as well as to determine an appropriate educational placement for him.
Petitionerís CSE met on June 16, 1999 to discuss the results of the evaluations. At that time, the psychiatric, assistive technology, and speech/language evaluations were apparently discussed, and the CSE determined to request neuropsychological and sensory integration evaluations. Respondents orally advised the participants at the June 16, 1999 meeting of their interest in a summer remedial program at Pine Ridge. Respondents followed up and advised petitioner by letter dated June 23, 1999 and received on June 25, 1999, of their interest in the Pine Ridge summer remedial program. The letter also indicated respondentsí interest in the studentís attending Pine Ridge for the 1999-2000 school year.
Petitionerís CSE met again on June 29, 1999 to discuss the studentís extended school year program, as well as his program for the 1999-2000 school year. However, the discussion of the extended school year program took up the entire meeting. During the meeting, respondents requested that the CSE recommend the Pine Ridge summer program. Instead, the CSE recommended that the student receive five hours per week of extended school year services at petitionerís high school in a special location to begin on July 6, 1999 (Exhibit SD-5). The CSE determined that "serious regression of (the studentís) learned skills will occur if (he) does not receive services during the summer" (Id.).
Respondents did not agree with the CSE recommendation, and placed their son in the summer remediation program at Pine Ridge. The CSE Chair testified that he advised the parents that their sonís summer IEP was ready on or about June 30, 1999. The record does not indicate when petitioner provided respondents with a copy of that document nor when the IEP recommended by the CSE was approved by the Board of Education.
The CSE met again on August 6 and August 27, 1999 to discuss and recommend the studentís educational program for the 1999-2000 school year. It recommended that the student attend regular education classes at the New Paltz High School, while receiving 400 minutes a week of supplemental instruction in a resource room and 30 minutes of one-to-one and 30 minutes of group counseling per week. The recommended testing modifications included extended time limits, special locations, use of a calculator, and access to a word processor with spell check and grammar check. In addition to recommending that a word processor be provided as assistive technology, the CSE suggested that voice activated software be evaluated for possible use in the studentís home (Exhibit SD-6).
Respondents did not agree with the CSEís recommendations, and informed the CSE at the meeting that their son would attend Pine Ridge for the 1999-2000 school year. By letter dated November 1, 1999, respondents were notified that the Board of Education had met on October 20, 1999, to arrange for the special education services recommended by the CSE (Exhibit 1 to Answer). The record does not reveal when petitioner provided respondents with a copy of the studentís IEP for the 1999-2000 school year.
The occupational therapy/sensory processing evaluation recommended by the CSE in June was conducted on August 26, 1999, but the report of the evaluation was not received until October 8, 1999 (Exhibit SD-17). The report concluded that the student was experiencing significant sensory processing and fine motor delays and that these directly affected his performance in the classroom. The evaluator reported that the student had not yet integrated use of both sides of his body, which affected his ability to perform many typical classroom tasks, and that he experienced tactile and auditory defensiveness, which distracted him from focusing on activities. Among other things, the evaluator recommended occupational therapy intervention with a sensory integration approach, a physical therapy evaluation with a sensory integration emphasis, and the administration of the Sensory Integration Practice Test to further evaluate the studentís needs and to obtain information necessary for the studentís specific treatment and educational planning in this area.
The report of the neuropsychological evaluation that the CSE had recommended in June was received by petitionerís staff on October 27, 1999 (Exhibit SD-16). The evaluator reported the studentís verbal reasoning skills were in the high average range and his nonverbal reasoning skills were in the average range. She noted that the student had significant processing speed problems, especially relating to graphomotor skills (which were extremely poor) and visual memory, that his spelling skills were weak, and his use of contextual conventions were very poor. Testing also evidenced significant word retrieval problems, showed that the student had great difficulty organizing and planning his approach and had difficulty with fine motor skills. The evaluator also found that the studentís verbal memory was significantly limited and visual memory was inconsistent and likely affected his ability to spell and to write. She concluded that the student had significant neuropsychological difficulties that affected his ability to function in academic and social settings with symptoms typical of ADHD, expressive and language disorder, dysgraphia and dysthymia.
The evaluator opined that the studentís life struggle with learning caused significant feelings of sadness and hopelessness, which had been exacerbated by the death of a sibling. She further opined that the student had low self-esteem and an under developed social awareness, and recommended that he be instructed in small classes in a supportive milieu. To address the boyís subtle yet pervasive language difficulties, the psychologist recommended that the student receive twice weekly language therapy. She also recommended that the student receive twice weekly instruction in social skills, and psychotherapy at least once per week to address his feelings of anxiety and sadness.
A CSE meeting was scheduled to take place on February 10, 2000 to review the results of the two evaluations that the CSE had received after its August meeting. However, the parents requested a due process proceeding in January 2000 to obtain tuition reimbursement for the studentís attendance at the Pine Ridge summer remedial program in 1999 and for his attendance as a residential student at that school during the 1999-2000 school year (Exhibit SD-3). As a result the CSE meeting was not held. The requested impartial hearing commenced on February 22, 2001, and continued on March 8 and 14, April 26, May 1, 17, and 18, and June 14. At the hearing, the parents asserted that the CSEís recommendations were flawed because of procedural mistakes, as well as failing to meet their sonís unique needs. The hearing concluded on June 29, 2000.
The hearing officer issued his decision on January 15, 2001. He held that petitioner did not develop the studentís summer and 1999-2000 IEPs in a timely fashion, because the former was prepared seven days before the projected start of the summer program and the latter was prepared thirteen days prior to the start of school in September. The hearing officer also agreed with the parentsí contention that respondent had not complied with the Regulation of the Commissioner of Education requiring a board of education to identify the participants for a proposed CSE meeting in the notice that is given to the parents. He found that the educational program that the CSE had recommended for the summer of 1999 was inadequate because the CSE did not identify the specific service to be provided to address the studentís deficit in writing and the recommended program failed to address the studentís low self-esteem. With respect to the 1999-2000 school year, the hearing officer found that the CSEís recommended educational program did not provide sufficient structure to enable the student to succeed.
The hearing officer next considered the appropriateness of the educational services that the parents had obtained for their son at Pine Ridge during the summer of 1999 and the 1999-2000 school year. He concluded that respondents had not demonstrated that their unilateral summer 1999 placement appropriately addressed the studentís special educational needs, and therefore denied their request for reimbursement. However, he found that respondents had demonstrated that their sonís unilateral placement in Pine Ridge during the 1999-2000 school year had appropriately addressed his special educational needs. The hearing officer directed the Board of Education to reimburse the parents in the amount of $39,270.13.
I will first consider the Board of Educationís appeal from the hearing officerís decision with respect to tuition reimbursement for the 1999-2000 school year, before addressing the parentsí cross-appeal with regard to reimbursement for the summer of 1999. 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 its 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 student's needs, establishes annual goals and short-term instructional objectives related to those needs, and provides for the use of appropriate special education services (Application of a Child with a Disability, Appeal No. 93-12; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).
The hearing officer determined that the 1999-2000 IEP was untimely developed because the CSE made its recommendation on August 27, 1999, which was 13 days prior to the beginning of the school program on September 9, 1999. I agree that the IEP for the 1999-2000 school year was untimely, but not for the reason set out by the hearing officer. The applicable regulations implementing the Individuals with Disabilities Education Act (IDEA) requires petitioner to have an IEP in effect at the beginning of the school year (34 C.F.R. ß 300.342[a]). In New York, CSE recommendations are reviewed by boards of education which may remand recommendations back to the CSE (former 8 NYCRR 200.4[d]; current 8 NYCRR 200.4[e]). Petitioner did not approve the CSEís recommendations for the studentís educational program during the 1999-2000 school year until October 20, 1999 (Answer and Cross-appeal at Exhibit 1). This was more than two months after the beginning of the school year. I therefore find that respondentís IEP for the 1999-2000 school year was untimely.
I also agree with the hearing officerís observation that the CSE bears some of the responsibility for the delay in obtaining the neuropsychological evaluation that the psychiatrist had recommended in the spring of 1999 and the CSE had recommended at its June 1999 meeting. The CSE did not obtain the results of the evaluation until after it had prepared the studentís 1999-2000 IEP. Similarly, the CSE recommended in June that a sensory integration evaluation be performed, but it prepared the studentís IEP before it received the results of that evaluation. Both evaluations provided useful information about the studentís current special educational needs. It was the CSEís responsibility to ensure that all necessary evaluations were conducted in a timely manner, so that it has adequate information about the studentís current special education needs.
An IEP is required to include a description of the studentís present levels of performance and needs with regard to academic achievement, social development, physical development, and management needs (8 NYCRR 200.4[c][I]). The record indicates that the student has significant emotional, social, and sensory and motor related physical needs that affect his academic performance. The IEPís explanation of how the studentís disability affects his ability to progress in the regular education environment is that he has significant difficulty with encoding his ideas in writing, limiting his ability to accurately and efficiently complete written assignments. I find that this description is inadequate. The IEP barely mentions the studentís ADHD, and inadequately addresses his sensory and motor related issues. It also fails to mention that he takes medication for his emotional condition, or refer to the fact that the district's psychiatric evaluator had diagnosed the student with anxiety and a depressive condition. Additionally, the IEP erroneously describes the studentís fine motor development as appropriate. I find that the studentís IEP did not identify his needs with regard to social and physical development, and that it contained incomplete information with regard to his management needs.
Petitioner argues that given the results of the studentís cognitive and performance testing as well as the requirement that children with disabilities be educated in the least restrictive environment, its program consisting of all mainstream regular education classes with resource room and counseling was appropriate. The hearing officer found that it was unrealistic to expect the student to succeed in a largely mainstream setting, in light of his long history of difficulty in both public and private schools and resulting depression and low self-esteem. In view of the nature of the studentís disabilities and related conditions; his school history and record of low performance; and his significant organizational, social, and executive function needs, I must concur with the hearing officerís finding.
I recognize that the student had not been in petitionerís schools since the fourth grade. Nevertheless, the studentís subsequent performance in private school, as well as subsequent evaluative data, amply demonstrates that the student has significant disabilities affecting his ability to benefit from instruction in a general education program, even with supportive services. On the record here, I find that the program recommended by the CSE would not have met the studentís needs. Consequently, petitioner has not met its burden of proof with respect to the appropriateness of the program it offered to provide.
The studentís parents bear the burden of proof with regard to the appropriateness of the services they obtained for their son 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 parents 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).
The director of the Pine Ridge Remedial Program and the schoolís director of academics testified about the appropriateness of that schoolís educational program for the student. Pine Ridge is an ungraded private residential school serving adolescent students with learning disabilities in a structured and intense program, while providing them with information otherwise provided in a traditional secondary educational setting. The school also addresses its studentsí social, communication, time management and organizational needs (Transcript pp. 356, 652). It has counselors on staff, a social cognition program, and evaluates student progress across a number of relevant dimensions. Class size ranges from 6 to 10 students, and the school program integrates language and writing skills in every class.
During the 1999-2000 school year, respondentsí son was instructed in English, social studies, science, math, a daily one-to-one language tutorial, and a daily independent study period which provided preparation and practice for the tutorial (Transcript p. 356). Although standardized test results indicated that reading was a relative strength for the student, he had much confusion about reading comprehension and the underlying structure of reading material (Transcript pp. 366-68). There was also testimony that his scores on standardized tests did not accurately measure his performance in reading, which was adversely affected by the studentís attention and energy levels (Id.). The witnesses from Pine Ridge also testified that the student had difficulty with vocabulary, expressive language and word retrieval, problems with reading comprehension, difficulty maintaining a consistent level of attention, a very significant attention problem, poor sensory integration, difficulties with social situations, significant dysgraphia, and fine motor skills, as well as organizational and time management difficulties that impaired his ability to complete homework assignments (Transcript pp. 371, 383-84, 403, 416-20, 648, 649, 652, 653, 659, 674).
To address his organizational difficulties, the student was assigned to additional preparation periods during the week (Transcript p. 373). The studentís individual educational plan at the school identified and established goals in a number of areas including reading comprehension, social skills and interaction, handwriting, spelling, written expression and composition, time management, and organization (Exhibit P-E). The studentís one-to-one tutorial included work in writing, spelling, reading comprehension, vocabulary, and language skills including organization (Transcript p. 372). The student participated in the counseling program offered at the school (Transcript pp. 391, 655, 670) and attended counseling regularly for his emotional needs (Transcript pp. 670-72). The student also participated in the schoolís required social cognition program involving school staff working with small groups of students on how they present and conduct themselves and their interactions with others (Transcript pp. 356-57, 654-55). The residential component of the school program provided a means for the schoolís residential counselors to work with the studentís needs relating to anger management and social interactions as well as an opportunity to focus on his time management and organizational deficits (Transcript pp. 651-53).
The witnesses from Pine Ridge testified that the schoolís intensive program was appropriate for the studentís needs (Transcript pp. 648-49, 652), and that he had made progress both academically and emotionally (Transcript pp. 413, 659). The director of academics testified that she would not endorse the studentís placement in a regular education program, and cautioned against changing his placement (Transcript p. 664). The director of remedial programs opined that she did not think the student would be successful in a class as large as 20 students (Transcript p. 385).
Petitioner argues that the studentís placement at Pine Ridge was precluded by the requirement that children with disabilities be placed in the least restrictive environment (LRE). Although the LRE requirement (20 U.S.C. ß 1412[a]) applies to unilateral parental placements (M.S. v. Board of Educ., 231 F.3d 96, 105 [2nd Cir. 2000], it must be balanced against the requirement that each student receive an appropriate education (Briggs v. Board of Educ., 882 F.2d 688, 692 [2nd Cir. 1989]).
The record here is clear that respondentsí son required more than a regular education program with supportive services. Therefore, his placement in a special education school was consistent with the LRE requirement. The only issue with regard to the LRE requirement is whether he required a residential placement to benefit from his educational program (Abrahamsom v. Hershman, 701 F.2d 223 [1st Cir. 1980]; Application of a Child with a Disability, Appeal No. 95-33; Application of a Child with a Disability, Appeal No. 98-69). I find that the residential nature of the Pine Ridge program was important to and did address the studentís significant emotional, organization, and social needs. Moreover, the extended classroom characteristics of the school placement provided the student with an important and continuing opportunity to work on homework that would otherwise not be completed because of his disability (Application of the Board of Educ., Appeal No. 00-026). I agree with the hearing officer that the residential educational program offered by Pine Ridge met the studentís special education needs. Accordingly, I find that respondents have met their burden of demonstrating the appropriateness of the program at Pine Ridge and have prevailed with respect to the second criterion for an award of tuition reimbursement with respect to the studentís program for the 1999-2000 school year.
The third and final criterion for an award of tuition reimbursement is that respondentsí claim is supported by equitable considerations. I note first that there is no evidence of respondentsí failure to cooperate with petitionerís CSE. Petitioner asserts that respondentsí claim should nevertheless be barred because they failed to make their son available to receive special education from petitioner or any other school district. However, as petitioner recognizes, I do not construe the provisions of 20 U.S.C. ß 1412 (a)(10)(c)(ii) and 34 C.F.R. ß 300. 403(c) as barring respondentsí claim (Application of a Child with a Disability, Appeal No. 00-012; Application of a Child with a Disability, Appeal No. 98-25). Petitioner points out that respondents paid the studentís 1999-2000 tuition for Pine Ridge prior to the CSEís discussion of that IEP. That in and of itself, however, will not deny a student tuition reimbursement (Application of a Child with a Disability, Appeal No. 96-31). I therefore find that respondentís claim for tuition reimbursement for the 1999-2000 school year is supported by equitable considerations. Having found that petitioner has not prevailed on the first criterion for an award of tuition reimbursement for the 1999-2000 school year and that respondents have prevailed on the second and third criteria, I dismiss petitionerís appeal for that period of time.
I now consider respondentsí cross-appeal with regard to reimbursement for the cost of their sonís summer 1999 placement. As noted above, the record does not reveal when the Board of Education approved the CSEís recommendations for the summer of 1999. To that extent, I concur with the hearing officerís determination that the IEP resulting from the CSEís June 29, 1999 meeting was untimely. In addition, I concur with his finding that the summer IEP did not include the necessary specificity explaining the recommended educational services. Applicable state and federal regulations provide that an IEP is to include a statement of the services to be provided to the child including class size and the location of the services (former 8 NYCRR 200.4[c][iv] and [x]; 34 C.F.R. ß 300.347[a] and ). As indicated above, the IEPís description of the studentís summer program is limited to "ESY Services 5 hours per week in special location". This incomplete and nonspecific description did not comply with the applicable regulations.
The hearing officer denied tuition reimbursement for the studentís summer 1999 program because he found that respondents had not met their burden of proving that the summer program was appropriate for the studentís educational needs. I concur with the hearing officer that the record lacks sufficient specific information about the services that were provided to the student during the summer to afford a basis for me to conclude that the program met this studentís special education needs. Without such information, it is impossible to make a determination regarding the appropriateness of the program selected by respondents for the student. I therefore find that the respondents have not met their burden of proof to show the appropriateness of the summer 1999 program. For this reason respondents cannot be awarded tuition reimbursement for their sonís summer 1999 unilateral placement at Pine Ridge, and there is no reason to proceed further to address equitable considerations in that regard.
THE APPEAL IS DISMISSED.
THE CROSS-APPEAL IS DISMISSED.
Albany, New York
February 7, 2002