The State Education Department
State Review Officer
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 Bedford Central School District
William T. LaVelle, P.C., attorneys for petitioners, William T. LaVelle, Esq., of counsel
Ingerman Smith, L.L.P., attorneys for respondent, Lawrence W. Reich, Esq., of counsel
Petitioners appeal from an impartial hearing officer's decision which denied their request for reimbursement for the cost of their son's tuition at the Eagle Hill School (Eagle Hill) in Greenwich, Connecticut during the 1997-98 and 1998-99 school years. The appeal must be dismissed.
Petitioners' son was 11 years old and in the sixth grade at Eagle Hill when the hearing in this proceeding began in May 1999. Petitioners unilaterally placed their son in Eagle Hill as a residential student in September 1997, and he remained there during the 1998-99 school year as well. Eagle Hill is a private school that has not been approved by the New York State Education Department to provide education to children with disabilities.
A possible diagnosis of pervasive developmental disorder was first raised when the student was evaluated at the age of three and one-half. An evaluation conducted at that time revealed that the student's pragmatic language skills were disordered with poorly developed attention and interaction skills and difficulty remaining on topic. He was initially classified as speech and language impaired by respondentís Committee on Special Education (CSE) in September 1991, when he was placed in a kindergarten readiness program at the districtís Bedford Elementary School. The student attended a special education program at respondent's Pound Ridge Elementary School for first grade. He was required to repeat the first grade, and his classification was changed to multiply disabled at that time (Exhibit 31).
The student has continued to be classified as multiply disabled in subsequent school years. He reportedly manifests the symptoms of a pervasive developmental disorder and an obsessive-compulsive disorder. In January 1999, one psychiatrist appeared to rule out both disorders, while opining that the student had a mixed receptive/expressive language disorder with some obsessional difficulties. (Exhibit 35). However, in September 1999, a second psychiatrist opined that the student had a pervasive developmental disorder, as well as a chronic motor tic disorder and an anxiety disorder. While petitioners assert that additional testing should have been done to determine the nature of their sonís disability, they do not explicitly challenge their sonís classification as multiply disabled in this appeal. There does not appear to be any genuine dispute about the fact that the student has a pervasive developmental disorder. To the extent that they claim respondentís CSE failed to test their son in all areas of his suspected disability, I find that their claim is without merit.
For second grade during the 1994-95 school year, the CSE recommended that the student be placed in the Westchester Exceptional Children's School (WECS). WECS is a state-approved private school for the education of children with disabilities. Petitioners did not object to their sonís placement at WECS, and the student continued there through fourth grade during the 1996-97 school year. While at WECS, the student reportedly was educated in classes having a 6:1+1 child to adult ratio, and received speech/language therapy, occupational therapy, and counseling.
On the Peabody Individual Achievement Test - Revised (PIAT-R) in January 1997, petitionersí son achieved grade equivalents (and percentile scores) of 2.7 (21) for reading recognition, 4.3 (61) for reading comprehension, 2.5 (19) for spelling, 3.7 (50) for math, and 5.4 (91) for general information (Exhibit 5). A psychological evaluation was conducted on March 20, 1997, reportedly because petitioners were exploring other school placements that might be appropriate for their son's academic and social needs (Exhibit 7). The student achieved a verbal IQ score of 115, a performance IQ score of 121, and a full scale IQ score of 121 on the Weschler Intelligence Scale for Children - III (WISC-III), placing him in the superior range of intelligence. The evaluator reported that although the student was intelligent and had relatively good academic skills, he was still emotionally fragile, vulnerable, volatile, and unable to handle moderate stress. The psychologist opined that those issues needed to be addressed in order for the student to succeed on any level and recommended continuation of both individual and small group counseling.
A counseling progress report from WECS dated March 24, 1997 indicated that the student continued to progress nicely, and that his self esteem and relationships with peers were improving (Exhibit 8). The social worker who prepared the report noted that the student's grimacing and tic behavior continued to be present, and she recommended continuation of the structure, support, individual attention and counseling at WECS to assist the student in developing more social and interactive skills. A psychologist who observed the student in class and interviewed the studentís teacher and his speech therapist in March 1997 reported that the student had made good progress since the prior year (Exhibit 6). The student was described as being more confident and outgoing in class, in addition to making academic progress. Nevertheless, the psychologist opined that the student was not ready to be mainstreamed because of behavioral concerns related to his emotional fragility.
On April 16, 1997, respondent's CSE recommended that the student continue at WECS in a self contained classroom with a 6:1+1 ratio for fifth grade during the 1997-98 school year (Exhibit 9). It also recommended that he receive 30 minutes of speech/language therapy in a group twice per week and 35 minutes of group counseling per week (Exhibit 9). Upon the recommendation of the studentís occupational therapist, the CSE recommended that occupational therapy be discontinued. It noted on the student's individualized education program (IEP) that although a triennial evaluation had not been slated for that year, certain testing was completed to ascertain whether the student had the skills necessary for transition to a less restrictive environment. The CSE concluded that the student was not ready for a less restrictive environment than WECS, while expressing the hope that he would return to respondentís schools for sixth grade.
By letter dated May 15, 1997, respondentís clerk informed petitioners that on May 14, the Board of Education had approved the CSEís recommendations for their sonís education. A note at the bottom of the clerkís letter indicated that information about the due process procedure was enclosed. Petitioners did not seek to challenge the CSEís placement recommendation for the 1997-98 school year by requesting an impartial hearing until February 1999, despite having concerns about their sonís continued placement at WECS. Instead, they unilaterally enrolled their son in Eagle Hill as a residential student commencing in September 1997.
In August 1997, the Stanford Diagnostic Reading Test (SDRT) was administered to the student at Eagle Hill. The student achieved grade equivalents (and percentile scores) of 5.1 (57) for auditory vocabulary, 2.4 (14) for reading comprehension, 2.2 (21) for phonetic analysis, 1.9 (3) for structural analysis, and 3.9 (21) for reading rate (Exhibit 10). The student was enrolled in small classes ranging from three to ten students, and received individual counseling while at Eagle Hill during the 1997-98 school year (Exhibit 13). In a report to the parents dated December 1997, Eagle Hill reported that their son had enjoyed a successful first term at the school, although his peer interactions were minimal (Exhibit 12). In March 1997, the studentís teacher at Eagle Hill advised the CSE that petitionersí son should continue to be in a residential special education placement with counseling (Exhibit 13). When the SDRT was again administered to the student in May 1998, he achieved grade equivalents (and percentile scores) of 6.8 (72) for auditory vocabulary, 6.9 (49) for auditory discrimination, 4.7 (46) for phonetic analysis, 6.5 (67) for structural analysis, and 4.6 (44) for reading comprehension (Exhibit 17).
On May 14, 1998, respondent's CSE recommended that the student be placed in an 8:1+1 special education class at WECS, with 30 minutes of speech/language therapy in a group twice per week and 35 minutes of counseling in a group while in the sixth grade during the 1998-99 school year (Exhibit 15). The studentís IEP indicated that the student continued to require small classes to sustain his behavior because of his anxiety, and that direct social practice would be important to enable him to generalize from his IEP counseling goals. The CSE also indicated on the IEP that the student required much assistance to maintain behavioral stability as academic demands increased, and that redirection and the use of cues were effective in dealing with his perseveration, i.e., repetition of words or sounds.
A June 1998 report to the parents from the Eagle Hill School indicated that the student continued to require and benefit from consistent structure and support. It noted that he came to class prepared and was consistent in his homework. However, his perseverative and rigid behaviors interfered with his performance, and he had difficulty effectively engaging with other students (Exhibit 16).
Petitioners again enrolled their son at Eagle Hill at their own expense for the 1998-99 school year. Although the CSE had recommended placement at WECS at the time of its annual review in May 1998, it was prepared to meet again at petitioners' request prior to the commencement of the school year to consider alternative placements for the student. Petitioners, however, did not accept several meeting dates offered over the summer apparently because the student's advisor at Eagle Hill could not attend. Petitioners cancelled an August meeting of the CSE because one of them had a doctor's appointment, and cancelled a November meeting because that parent was hospitalized. The scheduling of a CSE meeting was also delayed because petitioners wanted their advocate to attend the meeting, and their advocate was unavailable for a period of time due to a personal situation. When the CSE did meet again on December 3, 1998, it recommended that a full triennial evaluation be conducted in order to assist in determining an appropriate program for the student (Exhibit 28).
A speech/language evaluation was conducted on December 17, 1998 (Exhibit 31). The evaluator noted that the student's conversational speech was appropriate, but appeared stilted with little affect, facial language or body expression. She recommended that he continue to receive speech/language therapy in a group to work on his pragmatic speech skills and social skills. On December 28, 1999, the student was evaluated by a physical therapist, who concluded that he did not require physical therapy (Exhibit 32).
A psychological evaluation was conducted on January 7, 1999 (Exhibit 33). The student achieved a verbal IQ score of 119, a performance IQ score of 110, and a full-scale IQ score of 116 on the WISC-III. The psychologist noted that the student was emotionally fragile, that he continued to require significant emotional support particularly in stressful situations such as academics, and that he was unable to handle moderate stress. He further noted that the student had difficulty retaining orally presented information. The psychologist opined that the student appeared to work best in a small nurturing environment that provided frequent success, consistent expectations, routines, and social interactions that could be monitored.
On January 9, 1999, a classroom observation was performed at the Eagle Hill School by one of the district's psychologists (Exhibit 34). He reported that the student was noticeably tense in class, perhaps especially self-conscious because he was being observed. The student did not smile or exhibit any affect during the observation. However, he actively participated, making high level, intelligent responses which indicated a good level of interest and motivation.
On January 28, 1999, respondent's CSE reviewed the results of the recently performed evaluations and obtained input from petitioners regarding the student's current level of academic and social functioning. According to the minutes of the CSE meeting, the studentís classification as multiply disabled was discussed, and it was agreed to continue that classification. The CSE recommended that the student should be placed in a 12:1+1 class for math, English and social studies, and be mainstreamed for science and special subjects in the Gifted Special Education Program of Northern Westchester BOCES which is housed in the Pierre Van Cortlandt Middle School (Exhibit 41). It also recommended that an individual aide be provided to assist the student with transition and communication needs within his mainstream classes, and that speech/language therapy and counseling be continued. A review of the student's goals and objectives was to have been done at the January 1999 CSE meeting. Petitioners declined the opportunity to schedule another meeting.
Instead, petitioners requested an impartial hearing in February 1999, seeking tuition reimbursement for the 1997-98 school year and an order compelling respondent to maintain their son at Eagle Hill for the 1998-99 school year (Exhibit 46). The hearing began on May 11, 1999, and was continued on sixteen various dates, concluding on October 25, 2000. Both parties were represented by counsel, and neither party objected to the extension of the hearing. Instead, it appears that all hearing dates were arranged at the mutual convenience of the parties. The hearing officer rendered his decision on January 12, 2001. Although federal and state regulations require each board of education to ensure that its hearing officers render their decisions within 45 days after the board receives the request for a hearing (34 CFR 300.512[a]; 8 NYCRR 200.5[c]), it is clear that the hearing itself could not have been completed within the required time frame. I find that under the circumstances, it was impossible for the hearing officer to comply with the 45-day rule. However, I note that the better practice would have been for the hearing officer to document the parties' consent to the extension of the hearing and waiver of the 45-day rule on the record.
In his decision, the hearing officer found that the board of education had met its burden of demonstrating that it had offered the student an appropriate educational program for both the 1997-98 and 1998-99 school years, and denied petitioners' request for tuition reimbursement. He further found that petitioners had failed to cooperate with respondent's CSE in seeking a placement for their child, and that petitioners' decision to place their son at the Eagle Hill school was inconsistent with the requirement that students with disabilities be placed in the least restrictive environment (LRE).
Petitioners appeal from the hearing officer's decision. They allege that the record shows a "hint of impropriety" in the hearing officer's appointment, and assert that the hearing officer did not permit an inquiry into that matter. I find that the hearing officer should have addressed the issue when petitioners raised it at the outset of the hearing (Application of a Child with a Handicapping Condition, Appeal No. 92-46). However, this omission was rectified on July 26, 1999, when the district clerk testified at length about the maintenance and use of the rotational list to select a hearing officer. She stated that the assignment of an impartial hearing officer was done on the basis of alphabetic rotation from an approved list that included the names of all the impartial hearing officers who had indicated a willingness to serve (Transcript pp. 797-798). As such, I am satisfied that respondent fully complied with the rotational selection process (ß 4404 of the Education Law), and I see no impropriety in the hearing officer's appointment.
Petitioners further allege that the CSE failed to inform them of their right to due process. Respondent's CSE chairperson, however, testified that the due process rights for special education students are always included in correspondence as a matter of procedure when parents are invited to a CSE meeting or notified of a recommendation (Transcript pp. 2100-2103). I note that petitioners in their testimony did not deny receiving the due process information, but merely testified that they did not recall seeing it. Additionally, petitioners specifically mentioned their right to an impartial hearing in their June 1998 correspondence to the CSE chairperson (Exhibits 19, 20). Therefore, I find that the record supports the hearing officer's determination that petitioners were advised of their due process rights.
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 with 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 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 with a Disability, Appeal No. 93-9). The student's IEP for the 1997-98 school year was generated on April 16, 1997 (Exhibit 9). Although a triennial evaluation had not been slated for that year, the CSE conducted an educational evaluation, a classroom observation, an occupational therapy assessment and a psychological evaluation to ascertain whether the student had the skills necessary for transition to a less restrictive environment. These evaluations appear sufficient to establish the student's special education needs. Further, I find that the goals and objectives in the IEP address these needs. Determining that the student was not yet ready to be placed in a less restrictive environment, respondent's CSE recommended that the student continue in a 6:1+1 classroom at WECS for the 1997-98 school year with speech and language services 30 minutes per week as well as group counseling.
Respondent's CSE chairperson testified that the student made significant academic progress at WECS during the second, third and fourth grades, as reflected by his scores on the PIAT (Transcript pp. 450-452). The associate director of WECS testified that the student had made significant, consistent academic progress from grade to grade, and that he would have continued that progress if he had returned for the 1997-98 school year (Transcript pp. 614-15). The district also submitted a class profile of the proposed class and provided testimony to demonstrate that the student would have been appropriately grouped for instructional purposes pursuant to the provisions of 8 NYCRR 200.6(a)(3) (Transcript pp. 87-88, Exhibit 10). Since respondent demonstrated that it offered to provide an appropriate educational program for the 1997-98 school year, the hearing officer correctly denied petitioners' request for tuition reimbursement for that school year.
Petitioners' request for reimbursement for the 1997-98 school year must also be denied for a second reason. Petitioners did not challenge the CSE's April 1997 recommendation concerning their son's educational program for the 1997-98 school year until February 1999. Parents have an obligation to request an impartial hearing challenging the appropriateness of their child's IEP within a reasonable period of time after they have unilaterally placed the child in a private school (Phillips v. Board of Educ., 949 F. Supp 1108 [S.D. N.Y. 1997]; Bernardsville Board of Educ. v. J.H.; 42 F. 3d 149 [3d Cir. 1994}; Application of a Child with a Disability, Appeal No. 96-72). As noted above, the hearing officer found that petitioners were aware of their due process rights. Although petitioners renew their claim that they were unaware of their rights, I find that there is no basis in the record for me to substitute my judgment for that of the hearing officer with regard to the credibility of their claim. Accordingly, I agree with the hearing officer that petitionersí request for an award of tuition reimbursement for the 1997-98 school year was untimely.
The next question is whether petitioners are entitled to an award of tuition reimbursement for the 1998-99 school year. I must first note that respondentís CSE prepared three IEPs for that school year. The first IEP was prepared on May 14, 1998, and provided for the studentís placement at the WECS (Exhibit 15). The second IEP was prepared on December 3, 1998, and recommended a "special day school". The third IEP was prepared on January 28. 1999, and recommended a BOCES placement. In tuition reimbursement cases, the relevant IEP is the IEP that was in effect at the beginning of the school year (Application of a Child with a Disability, Appeal No. 98-14; Application of a Child with a Disability, Appeal 01-010).
The May 14, 1998 IEP included the studentís current levels of academic achievement, including some testing that had been recently done at Eagle Hill. It accurately described the studentís social and emotional development, his physical development, and his management needs, as required by former 8 NYCRR 200.4(c)(2)(i), now 8 NYCRR 200.4(d)(2)(i)). Although petitioners have claimed that the CSE should have further evaluated the etiology of their sonís disability, I find that there is no credible evidence that the results of such an examination would have dictated changes in the studentís educational program. The IEP included annual goals and objectives for language arts, mathematics, social studies, science, study skills, social/emotional development and speech/language. Those goals and objectives were related to the studentís identified special education needs, and appear to be based upon his then current levels of performance.
Respondent's CSE recommended that the student continue at WECS in an 8:1+1 self-contained classroom for the 1998-99 school year with speech and language services for 30 minutes twice per week as well as group counseling for 35 minutes weekly. The IEP notes that the student continued to require small class ratios to sustain his behavior, given his anxiety.
Respondent's CSE chairperson provided testimony and a profile of the proposed class to demonstrate that the student would have been appropriately grouped for instructional purposes, and that the program was reasonably calculated to provide the student with educational benefit (Transcript pp. 91-94, Exhibit 25). Respondent also provided the testimony of one of its school psychologists who had visited the WECS program to support its contention that the student's needs for the 1998-99 school year could have been met at its proposed placement. She testified that the other students in the class had needs and abilities similar to petitioners' son, and that the WECS program could have met the student's educational and social-emotional needs (Transcript pp. 517-518). The educational advisor from Eagle Hill who testified on petitioners' behalf agreed that the district's proposed annual goals and objectives were appropriate, and that he had no basis upon which to believe that the student could not have met those goals at WEC (Transcript pp. 1044-1048). Petitioners' contention that the CSE was required to reconvene because the class profile contained only six students when IEP recommendation was for an 8-1+ 1 placement is without merit. Clearly, the recommendation intended that no more than eight students could be placed in the student's special education class. Since respondent made an appropriate educational program available to the student for the 1998-99 school year, I find that the impartial hearing officer also properly denied petitioners' request for tuition reimbursement for that school year.
Although I have found that the May 1998 IEP was the relevant IEP for purposes of petitionersí claim for tuition reimbursement, I have briefly considered their contentions with regard to the manner in which the January 28, 1999 CSE meeting was conducted. Petitioners assert that they were denied full and meaningful participation at the CSE meeting. The record, however, contains their admission that the CSE listened to their concerns, and that the student's educational advisor at Eagle Hill was given the opportunity to make a twenty-five minute presentation (Transcript p. 1612). Although petitioners preferred that their son remain at Eagle Hill, it does not follow that the CSE denied them the opportunity to participate in developing their sonís IEP when it selected another placement for him. I have also considered petitionersí other objections, which I find to be without merit.
THE APPEAL IS DISMISSED.
Albany, New York
February 13, 2002