The State Education Department
State Review Officer
Application of a CHILD WITH A DISABILITY, by her 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
Skyer & Most, attorney for petitioner, Regina Skyer, Esq., of counsel
Hon. Michael D. Hess, Corporation Counsel, attorney for respondent, Blanche Greenfield, Esq., of counsel
Petitioner appeals from an impartial hearing officer's decision denying her request for reimbursement of her daughter's tuition at The Summit School (Summit) during the 2000-01 school year. She also appeals from the hearing officer's finding that respondent’s Committee on Special Education (CSE) had appropriately classified petitioner’s daughter as speech impaired. The appeal must be sustained.
The Board of Education asks me to excuse its delay in answering the petition. The petition was served on April 30, 2001. The answer should have been served by no later than May 10, 2001. The Assistant Corporation Counsel assigned to this appeal was advised that the matter might be settled, and did not learn until May 17, 2001 that there would be no settlement. The answer was served on June 1, 2001. While I am not unmindful of the heavy case load that the individual attorneys bear in defending respondent in these appeals, I must note that it does not provide a reasonable basis for me to excuse substantial delays in answering petitions. Nevertheless, I find that under the circumstances presented, I should excuse respondent’s relatively brief delay. I will accept the answer.
At the time of the hearing, petitioner's daughter was nine years old. She had been diagnosed as having Asperger's Syndrome (Exhibit 13). Although the child has been classified as speech impaired, petitioner asserts that her daughter would be more appropriately classified as autistic or emotionally disturbed. The child attends Summit, which has been approved by the New York State Education Department (NYSED) as a school for children with disabilities.
The child was classified as a preschool student with a disability by respondent’s Committee on Preschool Special Education (CPSE). While under the CPSE’s jurisdiction, she attended the Whitestone School for Child Development (Exhibit A, Transcript pp. 427-429). Prior to the child’s entry into kindergarten, respondent’s CSE recommended that she be placed in a special education school for children with autism and emotional disturbances (Transcript p. 431). The parent objected to her daughter’s placement in the special education school, and the CSE agreed to place the child in a self-contained class in a public school (Transcript p. 432). At the end of the school year, the child was evaluated by a psychiatrist, who opined that the child should be classified as autistic. He recommended that she remain in a self-contained class. He also recommended that a child psychiatrist be consulted to confirm or refute the diagnosis of autism and to consider medication for her. The psychiatrist suggested that the child’s parent receive counseling and participate in a support group (Exhibit A).
The CSE recommended that the child be placed in a self-contained class during first grade, except for mainstreaming in reading and math (Transcript p. 435). She was placed in accordance with that recommendation. The child remained in that program for second grade during the 1998-99 school year (Transcript pp. 437, 438). At the end of second grade, the child was placed in a regular education class as an experiment (Transcript pp. 439, 440). For third grade, the child was again placed in a regular education class (Transcript p. 440). The CSE recommended that she receive speech therapy twice per week in a group of three, individual speech therapy once per week, individual occupational therapy twice per week, and group counseling once per week during the 1999-2000 school year (Exhibit 1).
At the hearing in this proceeding, the child’s mother testified that her daughter’s behavior regressed at the beginning of third grade in the fall of 1999. The child reportedly exhibited an increase in self-stimulatory behaviors and temper tantrums, and her attachment to spatulas as a comfort tool intensified (Transcript pp. 441-445). The child was also reportedly manipulated by her classmates into kissing boys, the blackboard, and a garbage can (Exhibit C, Transcript p. 457).
A psychologist who evaluated the child in the fall of 1999 reported that the child retreated into a fantasy world during testing. On the Weschler Intelligence Scale for Children - Third Edition (WISC-III), the child achieved a verbal IQ score of 98, a performance IQ score of 77, and a full scale IQ score of 86. The child's verbal score fell into the average range, her performance score fell into the borderline range and her full-scale score fell into the low average range. The psychologist reported that the child’s visual perceptual ability was impaired, limiting her ability to accurately perceive, interpret and understand visual information, including non-verbal social cues and information in novel situations. The psychologist recommended that the child be placed in an academic environment with specialists in Asperger's Syndrome. With regard to the child’s then current placement, the psychologist recommended that an aide be assigned to her in the classroom. The psychologist further recommended that the child receive occupational therapy to address her sensory-integration deficits, social skills training in a small group, individual counseling to help increase her level of interpersonal engagement and problem solving, and intensive speech/language therapy emphasizing the pragmatic aspects of communication (Exhibit 14).
In November 1999, petitioner asked the CSE for a new evaluation of her child and a revised Individualized Education Plan (IEP). The parent emphasized that her child should remain in a mainstream placement (Exhibit E). Responding to her child's academic progress report in November, petitioner disagreed with the teacher's report that the child frequently completed her homework. The parent stated that her child needed assistance with her school work in a mainstream setting (Exhibit F). The child's teacher completed an updated educational performance report in December 1999. The teacher reported that the child always completed her homework, sometimes interacted in a large group, never interacted in a small group, sometimes interacted on a one-to-one basis, and never related to peers. In addition, she indicated that the child's speech and language needs did not adversely affect her educational development (Exhibit 7).
A psychological evaluation and an educational evaluation were conducted in January 2000, in response to the parent's request for updated evaluations. The psychologist reported that the child was verbally spontaneous during testing, but her perceptions were often fanciful, tangential and unrealistic. Intelligence testing revealed an IQ score in the low average range. The evaluator noted that the child was weakest on the parts of the test that measured pictorial incongruities and short-term visual memory. Projective testing suggested that the child felt vulnerable, anxious and insecure (Exhibit 6).
The educational evaluator administered the Kaufman Test of Education Achievement (KTEA), the Woodcock-Johnson - Revised (WJ-R), and the Slingerland Screening Tests for Identifying Children with Specific Learning Disability (Slingerland). On the KTEA, the child achieved a total reading grade equivalent of 5.1, and a total math grade equivalent of 2.8. On the WJ-R, the child achieved grade equivalents of 5.1 for passage comprehension, 1.9 for science and 4.3 for social studies. On the Slingerland, the child was able to match sets of words with 100% accuracy. The evaluator noted that most of the child’s academic skills were well developed, but her written expression was uneven and she evidenced a weakness in her fine motor skills (Exhibit 5). Classroom observations revealed that the child exhibited no unusual behavior, but she did appear quiet and withdrawn. She did not initiate peer interaction, but she did occasionally interact on a one-to-one basis (Exhibits 8, 9).
On January 10, 2000, the child was evaluated by a neurologist at the Dan Marino Center in Florida. He reported that the child's behaviors were most consistent with a diagnosis of Asperger's Syndrome. The neurologist recommended that the child be placed in a small, structured classroom setting, and that social skills training be integrated in her educational setting, as well as outside of the classroom. He also recommended that she receive speech/language therapy with an emphasis on semantic and pragmatic aspects of language. Finally, he recommended that occupational therapy be integrated into the school setting for her (Exhibit J).
A psychiatric evaluation was completed on January 13, 2000. The psychiatrist diagnosed the child as having a Pervasive Developmental Disorder: Not Otherwise Specified (PDD:NOS). He opined that she should be placed in a smaller class than her current one, and that she required more supervision by a teacher specializing in children diagnosed with PDD:NOS. He stated that the child’s needs could be met in a class with students diagnosed with PDD:NOS or Asperger's Syndrome (Exhibit I).
A speech and language report dated March 10, 2000 indicated that the child's speech, language, auditory, problem solving and behavior/motivation skills were all rated as average or above average. The child's ability to remain on topic was not rated. The therapist indicated that the child could follow three-step directions, and could compose grammatically correct sentences. She recommended that the child remain in her current program of speech/language therapy (Exhibit 10).
On April 4, 2000, the CSE convened by teleconference. The school psychologist and the child's regular education teacher both participated by telephone. The parent testified that she waited for 20 minutes before being called in to the meeting (Transcript pp. 537-538). The teacher testified that she was unable to attend the entire meeting because she had to return to her classroom (Transcript p. 86). The teacher acknowledged that she did not see the neurological or psychiatric evaluations the mother shared with the CSE, nor did she see the evaluations conducted by the school district (Transcript pp. 81, 96). There is no evidence in the record that the parent was asked whether she objected to the use of teleconferencing. The mother testified that she requested information from both the regular education teacher and the school psychologist after they had left the meeting, but they were not called back to provide their input (Transcript pp. 539-541).
The CSE recommended that the child remain classified speech impaired. It also recommended a general education program for the child, with group speech and language therapy twice per week, individual speech and language therapy once per week, individual occupational therapy twice per week, and group counseling once per week. With regard to other programs and services considered, the CSE noted the child's behavioral vulnerabilities and her mother’s reported examples of social naivete would not be well served by the addition of a crisis management paraprofessional (Exhibit 1).
The mother enrolled her daughter in Summit, and requested an impartial hearing to challenge the classification and placement of her child. The hearing was held over the course of four days between October 26, 2000 and January 29, 2001. The parent asserted that her child was improperly classified speech impaired. In her decision dated March 20, 2001, the hearing officer found that the parent had failed to establish that her child should be classified as autistic and that the school district's classification of speech impaired addressed the child's symptoms. The hearing officer further held that the CSE was properly composed and the necessary members participated in a meaningful manner. Finally, the hearing officer found that the CSE had recommended an appropriate program for the child, and she denied the parent's request for tuition reimbursement.
Petitioner asserts that the hearing officer applied the wrong legal standard in finding that the CSE had properly classified her child as speech impaired by shifting the burden of proof as to the appropriateness of her child’s classification from the Board of Education to her. She contends that the CSE failed to adequately evaluate her child, and that its recommendation as to classification must therefore be invalidated. Petitioner is correct that the Board of Education bears the burden of establishing the appropriateness of the classification recommended by its CSE (Application of a Child with a Disability, Appeal No. 94-16; Application of a Child Suspected of Having a Disability, Appeal No. 94-8; Application of a Child with a Handicapping Condition, Appeal No. 92-37; Application of a Child with a Handicapping Condition, Appeal No. 91-11).
The starting point for any CSE recommendation is an adequate evaluation of a child in accordance with the requirements of the Regulations of the Commissioner of Education. An individual evaluation must include a physical examination in accordance with the provisions of Sections 903, 904 and 905 of the Education Law, an individual psychological evaluation, a social history, and other appropriate assessments or evaluations to ascertain the physical, mental and emotional factors which contribute to the suspected disability (8 NYCRR 200.4 [b]). Petitioner contends that respondent did not offer evidence that its CSE had obtained a physical examination of her child. I note, however, that the child was examined by a neurologist, and the parent shared the neurologist's report with the CSE. The neurologist's report indicates that he performed a physical examination. I find that the CSE had an updated physical examination to consider.
Petitioner argues that her child’s classification as speech impaired is inconsistent with the CSE psychiatrist’s finding in 1997 that the child met the criteria for a diagnosis of an autistic disorder (Exhibit A) and the February 2000 diagnosis of PDD:NOS by a private psychiatrist (Exhibit I). She also relies upon the CSE psychologist’s January 2000 description of the child’s rambling, tangential and disorganized perceptions (Exhibit 6), and the teacher’s December 1999 report describing the child’s limited ability to interact with peers and to think abstractly (Exhibit 7). At the hearing, the school psychologist member of the CSE testified that there was a great consistency of opinion among the professionals who have evaluated the child that she presented behaviors that fell within the medical diagnosis of PDD, which includes autism and Asperger’s Syndrome (Transcript p. 251). However, the witness noted that a psychiatric diagnosis does not automatically lead to an educational classification.
Although I agree with the CSE school psychologist that a CSE must look at the ways in which a child’s disability affects the child’s ability to participate in a school’s regular education program, I am not persuaded that the Board of Education has met its burden of proof as to the child’s classification. The child’s ability to relate appropriately to others appears to be a significant issue for her, which is more consistent with the classifications of autism and emotional disturbance (8 NYCRR 200.1[zz] and ). I must also note that the classification of speech impaired is not supported by an adequate speech/language evaluation in the record before me, and that the child’s ability to interact with others has not been adequately assessed. Consequently, I find that respondent has not met its burden of proof with respect to the child’s classification as speech impaired.
Petitioner also challenges the CSE’s recommendation with regard to classification and program on procedural grounds. She contends that the CSE was not validly composed on April 4, 2000 because her daughter’s regular education teacher participated by telephone for only about 20 minutes of the 90-minute meeting. The regular education teacher of a child with a disability who participates in the regular education program is a mandatory member of the CSE (34 C.F.R. § 300.344[a]; Application of a Child with a Disability, Appeal No. 99-54; Application of the Board of Educ., Appeal No. 00-072). The U.S. Department of Education has indicated in an official interpretation of its regulations that a child’s regular education teacher need not participate in all decisions made at a CSE meeting. However, the regular education teacher must "…participate in discussions and decisions about how to modify the general curriculum in the regular classroom to ensure the child’s involvement and progress in the general curriculum and participation in the regular education environment." (34 C.F.R. Part 300, Appendix A, Question 24).
A school district is free to use teleconferencing to ensure participation of all CSE members in meetings to develop IEPs. A June 1992 memo to the field from NYSED, a copy of which is annexed to the petition, explains the procedures a school district must follow to ensure that the CSE has been properly convened by teleconference. The memo provides, in pertinent part, that:
1. Telephone conferencing is an interactive process that allows participants to engage in discussions regarding a child's education during the scheduled Committee meeting. A telephone discussion that occurs prior to or after the meeting does not meet the regulatory intent of participation at committee meetings.
2. Participants in the telephone conference must be given every opportunity for active involvement throughout the entire Committee meeting. During the meeting, all participants, including the child’s teacher and the parents, must hear all information provided by Committee members and other participants and must be able to discuss all issues with the CSE/CPSE members.
3. Individuals who participate through teleconferencing must have access to the same material available to all others involved in this process. The child’s teacher, for example, must be provided with copies of evaluative reports and other written material to be discussed by the Committee during the meeting. Similarly, the Committee should be provided with all relevant teacher and related service provider reports. The confidentiality of this information must be assured according to the provision of subdivision 200.5(f) of the Regulations of the Commissioner of Education.
4. Participation in Committee meetings through teleconferencing is a permissible alternative to having all members convene in a face-to-face meeting unless the parent objects. Where teleconferencing is offered as an alternative to a face-to-face CSE meeting, parents must be informed through prior notice that they have the right to participate in a face-to-face meeting of the committee with the child’s teacher in attendance.
The memorandum provides that all CSE members must hear all information provided by each CSE member and must be able to discuss all issues. The memorandum further provides that individuals who participate through teleconferencing must have access to the same material available to all others involved in this process. The record indicates that neither the child's regular education teacher nor the school psychologist attended the entire CSE meeting. The evidence also shows that the child's teacher was never provided with copies of evaluation reports. In addition, I note that there is no evidence that petitioner was advised of her right to have a face-to-face meeting with the CSE members. Under the circumstances, I must find that respondent did not comply with the guidelines for teleconferencing at a CSE meeting.
Although the field memo guidelines do not have the force and effect of a regulation, I find that they are consistent with the policies underlying the Individuals with Disabilities Education Act (20 U.S.C. §§ 1400 et seq.) and its state counterpart, Article 89 of the Education Law. The preparation of a student’s IEP by an informed multidisciplinary team is at the heart of both statutes. Each member is expected to be fully informed of the student’s educational needs and to participate fully in the development of an educational program that will adequately address those needs. That was not the case in this instance. Therefore, I am constrained to find that the CSE was not properly constituted, and that the IEP developed was invalid (Application of the Board of Educ., Appeal No. 00-069; Application of a Child with a Disability, Appeal No. 00-043). Because I have found that the IEP was invalid, it follows that the Board of Education did not sustain its burden of proving the appropriateness of the classification or program recommended by its CSE.
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 ). 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 ). I have found that respondent has failed to meet its burden of proof with respect to the appropriateness of the educational program recommended by its CSE.
The child's parent bears the burden of proof with regard to the appropriateness of the services selected during the 2000-01 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 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’s daughter has organizational and language needs, as well as difficulty accurately perceiving and interpreting social situations (Exhibits 6, 7, 10, 14, I, and J). The child's psychiatrist testified that, while the child has difficulties with speech, her difficulty relating to others is a more important issue (Transcript p. 414). He asserted that the child needed "a very supportive, self-contained environment with a strong therapeutic element". He recommended a class of no more than 8 to 12 students (Transcript p. 417).
The program at Summit was described by its principal at the hearing. He reported that classes have a student:staff ratio of 12:1:1. He indicated that typically there was a two-year chronological age range in each class (Transcript p. 374). Social workers provide social skills training, as well as individual and group counseling (Transcript p. 374). Speech therapists teach pragmatic language skills in all homerooms (Transcript p. 375). He stated that the child's therapist consulted with her teachers on a regular basis and support services were integrated into academic areas (Transcript p. 387). I find that the program at Summit appropriately meets the child's needs.
The third criterion for an award of tuition reimbursement is whether the parent's claim is supported by equitable considerations. There is no indication in the record that petitioner failed to cooperate with the CSE. Accordingly, I find that equitable considerations support the parent's claim for tuition reimbursement. Having found that petitioner has prevailed on all three criteria for an award of tuition reimbursement, I must sustain petitioner's appeal.
THE APPEAL IS SUSTAINED.
IT IS ORDERED that the hearing officer's decision is hereby annulled; and
IT IS FURTHER ORDERED that respondent shall reimburse petitioner for her tuition expenses at the Summit School during 2000-01 school year, upon petitioner's presentation to respondent of proof of those expenditures.
Albany, New York
March 25, 2002
JOSEPH P. FREY