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
Neal H. Rosenberg, Esq., attorney for petitioner
Hon. Michael D. Hess, Corporation Counsel, attorney for respondent, Martin Bowe, Esq., of counsel
Petitioner appeals from an impartial hearing officerís decision finding that respondent had offered to provide an appropriate educational program for petitionerís daughter during the 2000-01 school year, and denying petitionerís request for tuition reimbursement for her childís unilateral placement at the West End Day School (WEDS) for that year. The appeal must be sustained.
At the time of the hearing, petitionerís seven-year-old daughter was in the first grade at WEDS in Manhattan. She was unilaterally placed in that school by her mother in September 1999, and had remained in that school. WEDS has not been approved by the New York State Education Department to provide instruction to children with disabilities. The child had been classified as emotionally disturbed by respondentís Committee on Special Education (CSE). There was no dispute about her classification, or that she should have been enrolled in a nonpublic school for the 2000-01 school year.
Petitioner enrolled her child in the Marble Hill Pre-School in September 1997. The child reportedly adjusted well during the first three months at the school, but thereafter she cried repeatedly, refused to play with the other children, and refused to eat or use the restroom during the school day (Exhibit E). In September 1998, the child was placed in a pre-kindergarten class at St. Gabrielís Parochial School in the Bronx, where she continued to be anxious and have social and emotional difficulties. The childís anxiety and emotional difficulties continued during kindergarten at WEDS during the 1999-2000 school year.
It is not clear from the record when the child was initially referred to respondentís CSE for evaluation, but a psychological evaluation conducted during February or March 1999 revealed that the child had an extremely high cognitive capacity with no learning disability. She was described as a pleasant child who placed unrealistic demands upon herself, had difficulty dealing with her feelings and tended to be a perfectionist. She perceived the world as threatening, and experienced overwhelming anxiety. Although her academic skills were reported to be at the kindergarten level, some language delays were noted (Exhibit D).
A speech and language evaluation conducted privately at the Columbia-Presbyterian Medical Center in May 1999 revealed a mild dysfluency and early symptoms of a central auditory processing disorder (Exhibit E). Similarly, a neurological evaluation dated August 20, 1999 noted signs of static encephalopathy with eye-hand and fine finger motor coordination deficits, as well as extra-ocular muscle imbalance and deficiencies in her central auditory processing skills. The neurologist noted that emotional factors and a suggestion of an attention deficit disorder (ADD) affected the childís ability to function (Exhibit D).
The child was classified by the CSE as emotionally disturbed, and recommended for a 12-month placement in a nonpublic school for the 1999-2000 school year (Exhibit F). The record does not reveal what nonpublic school enrollment was offered to the child by the Board of Education. The CSE could not have recommended WEDS because it is not approved as a school for children with disabilities by the State Education Department. As noted above, petitioner chose to enroll her daughter in the WEDS for that school year.
Prior to the CSEís annual review on June 15, 2000, a number of evaluations and updates were obtained. In a social history update interview, petitioner reported that her daughter was physically awkward, and had difficulty interacting with more than one child in a given setting, participating in school, and making simple decisions. The mother wondered if her problems might have resulted from a car accident the mother suffered during her sixth month of pregnancy (Exhibit B). Following an examination conducted in April 2000, a physician diagnosed the child as having anxiety and depression (Exhibit C).
A school psychologist who evaluated the child on April 8, 2000 reported that she was socially appropriate and focused, and did not appear shy or anxious. On the Wechsler Intelligence Scale for Children Ė III (WISC-III), the child achieved a verbal IQ score of 112, a performance IQ score of 96, and a full scale IQ score of 105, all of which were in the average range. Her projective test responses and figure drawings were age appropriate, and did not indicate a disturbance that would have a negative impact upon learning. The psychologist noted that the child interacted normally with him, was in touch with reality, knew right from wrong, had good impulse control, desired to please, engaged in activities and projected as one who was curious and interested in learning (Exhibit D).
An educational evaluation was also conducted on April 8, 2000. The evaluator reported that the childís concentration was adequate for the evaluation. She had answered all questions appropriately, demonstrated well-developed and age-appropriate language and vocabulary skills, and used full and complete sentences. On the Wechsler Individual Achievement Test (WIAT), her overall reading skills were measured at the 55th percentile and the 1.2 grade level, and her overall performance in mathematics was at the 55th percentile and the 1.9 grade level. She spelled on a 1.3 grade level, was able to write the alphabet correctly, but was unable to write sentences independently. A significant deficit was noted in her listening comprehension, which was below kindergarten level, indicating that verbal information and instructions to her needed to be repeated, clarified and presented in small portions, with visual cues whenever possible (Exhibit F).
A speech and language progress report prepared by WEDS on January 5, 2000 indicated that, during the 1999-2000 school year, the child received speech/language therapy both individually and in a group setting. Her speech/language therapist concluded that although the child had progressed in all areas of communication, she continued to require support in order to verbally communicate in group situations. She opined that the childís difficulties appeared to be more emotionally and behaviorally based, rather than a speech and language disorder, and recommended that her speech and language services be reduced to group therapy (Exhibit I). A CSE speech/language therapist who tested the child on April 28, 2000 with the Clinical Evaluation of Language Fundamentals Ė 3 (CELF-3) indicated that the childís receptive and expressive language skills were within normal limits. She recommended that the childís speech/language therapy be terminated (Exhibit H).
In a progress report dated March 24, 2000, the childís teacher at WEDS described petitionerís daughter as an extremely anxiety-stricken child who rarely spoke, but had recently shown improvements. The teacher estimated that the child performed at the kindergarten level in reading and mathematics, and reported that she was able to recite the letters of the alphabet as well as identify them and their corresponding sounds, and that her sight word vocabulary had increased. The teacher described the child as a non-reader who did not recognize vowel sounds and had difficulty with phonemic awareness skills such as rhyming. She was able to count from 1 to 100 with some teacher assistance but sometimes had difficulty with mathematical concepts. Her handwriting was legible, although she had difficulty forming her letters appropriately within spatial boundaries.
The teacher noted that the child did not initiate conversation with adults and, although other children attempted to play with her, she did not reciprocate, but allowed herself to be led around. However, she had slowly become more verbal during conversations with her teacher and, with intense teacher involvement, had shown improvement in her social development. The teacher reported that the child had difficulty verbalizing her emotions, would cry without provocation, tended to "freeze" whenever she felt crowded, had difficulty making decisions and never voluntarily spoke in class. She concluded that the child needed a great deal of encouragement to feel safe and secure in order to respond to others.
On April 3, 2000, a WEDS social worker recalled that the child had entered West End unable to communicate verbally and paralyzed with anxiety. She described the child as selectively mute and unable to verbalize her needs. However, she had demonstrated progress and now generally entered her classroom with less trepidation. While she continued to be anxious, she participated more frequently in class, raised her hand during group discussions, answered questions more easily, asked for assistance from her teacher and responded when her peers invited her to play. The social worker reported that the number of the childís crying episodes had significantly decreased (Exhibit J).
When asked during an Infancy and Early Childhood Development Program evaluation conducted on May 9, 2000, about any problems she might have, the child reported that she became scared in the presence of other people. The evaluator opined that the child presented with symptoms of generalized anxiety disorder, sensory defensiveness (she was sensitive to tags on her clothing, strong odors and loud noises), a history of speech and language delays, perfectionist tendencies, and motor difficulties. She did not like to be among a group of people. Based on conversations with her teacher and speech/language therapist, the evaluator reasoned that the childís behavior had improved during the school year, even though she continued to be anxious about speaking in class, making simple decisions, and interacting with other children (Exhibit E).
On May 19, 2000, a school social worker observed the child during a classroom reading session at WEDS. Petitionerís daughter was engrossed in the story and listened to and looked at the teacher while she read. The teacher asked questions. Petitionerís child did not volunteer any answers, but responded correctly when addressed directly, albeit slowly and softly (Exhibit G).
At its June 15, 2000 review, the CSE continued the childís classification as emotionally disturbed. Noting that the child continued to experience anxiety, and had difficulties participating verbally in class, the CSE concluded that the child required a small, highly structured environment to help her develop peer relationships, respond to her anxiety and help her with transitions. It determined that the child could not benefit from participation in a mainstreamed setting because of her inability to function in large group settings and that placement in a public school was not appropriate. The CSE recommended that the child be placed in a non-public school with a class size ratio of 12:1+1. It also recommended that she receive 30 minutes of counseling in a group of two once per week, 30 minutes of individual counseling twice per week, 30 minutes of speech/language therapy in a group of 3 twice per week, and 30 minutes of individual occupational therapy once per week (Exhibit A).
On the childís individualized education program (IEP), the CSE noted that it had referred the matter to respondentís Central Based Support Team (CBST), which was to recommend a specific nonpublic school in which to place petitionerís daughter. The CBST representative forwarded the relevant information about the child to three state-approved schools: the Lorge School, the Van Cleve Program at the New York Institute for Special Education, and the League School in Brooklyn. Each of these schools contacted petitioner to arrange a visit to the school. Petitioner visited each school during July and August 2000. By letter dated August 15, 2000, petitioner informed the CSE chairperson that she had visited the three schools, and she expressed her belief that none of the schools was appropriate for her daughter given the childís unique profile, abilities and educational needs (Exhibit K).
Petitioner did not explicitly ask the CSE chairperson to do anything more in the matter. In any event, neither the CSE nor the CBST responded to petitionerís letter, and neither entity recommended a specific placement for the child. Instead, the childís case was considered to be closed (Exhibit M). Petitioner continued her childís enrollment at West End for the 2000-01 school year. On September 7, 2000, she requested an impartial hearing seeking tuition reimbursement for that school year. The hearing commenced on March 7, 2001 and concluded on June 28, 2001.
In his decision dated August 10, 2001, the hearing officer noted that the parent had conceded that the IEP and the CSEís recommended placement at a non-public school were appropriate. He determined that the only issue before him was whether the studentís IEP could have been implemented at the League School because that was the only school about which respondent submitted proof at the hearing. The hearing officer found that the League School would have been appropriate for petitionerís child. He therefore denied the parentís request for tuition reimbursement.
Petitioner seeks an award of tuition reimbursement. A board of education may be required to pay for educational services obtained for a child by the childís parents, if the services offered by the board were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parentsí claim (Burlington Sch. Comm. v. Depít of Educ., 471 U.S. 359 ). The fact that the facility selected by the parents to provide special education services to the child is not approved as a school for children with disabilities by the State Education Department (as is the case here) is not dispositive of the parentsí claim for tuition reimbursement (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 ).
The board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (Application of a Handicapped Child, 22 Ed. Dept. Rep. 487 ; Application of a Child with a Disability, Appeal No. 93-9; Application of a Child with a Handicapping Condition, Appeal No. 92-7). To meet its burden, the board of education must show that the recommended program is reasonably calculated to allow the child to receive educational benefits (Bd. of Educ. Hendrick Hudson CSD v. Rowley, 458 U.S. 176 ), and that the recommended program is the least restrictive environment for the child (34 C.F.R. ß300.550[b]; 8 NYCRR ß200.6[a]). An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the childís needs, provides for the use of appropriate special education services to address the childís special education needs, and establishes annual goals and short-term instructional objectives which are related to those needs (Application of a Child with a Disability, Appeal No. 93-9; Application of a Child with a Disability, Appeal No. 93-12).
Petitioner does not dispute the appropriateness of her daughterís IEP, but she contends that the Board of Education cannot meet its burden of proving that it had offered to provide an appropriate educational program to the child because neither the CSE nor the CBST in fact recommended a specific placement for her daughter. Respondent asserts that petitioner attended meetings of the CSE and the CBST, but it does not allege that either entity specifically recommended the League School or any other school
When a CSE in New York City determines that a child should be enrolled in a nonpublic school, it refers the childís case to the CBST, which sends information about the child to one or more approved nonpublic schools (Transcript pp. 23-24). Each recipient of information about the child determines whether its program would be appropriate for the child. The process by which that determination is made may include an interview of the child and/or his parent. The League Schoolís clinical director testified at the hearing that upon receipt of the information from the CBST, the schoolís intake team determined that the academic and social skills of petitionerís daughter were appropriate for a class with an opening at the school (Transcript p. 94).
The next step in the intake process was to invite petitioner and her child to visit the League School. Petitioner visited the school and met with the clinical director on August 7, 2000 (Exhibit L). Petitionerís daughter did not accompany her, although petitioner had reportedly been asked to bring the child with her (Transcript p. 95). During her visit, petitioner reportedly agreed to call the League School to make an appointment to bring her daughter in for a visit (Transcript p. 96). However, petitioner apparently failed to call for an appointment. The clinical director testified that most of the prospective students who come for visits are informally tested during their visits, and that the intake team meets after a visit to determine if the child should be offered a place at the school (Transcript pp. 89-90). Once that determination is made the Board of Education and the childís parents are notified. The clinical director testified that petitionerís daughter could have been placed in the League School in September 2000 if the intake process had been completed (Transcript pp. 97, 101).
A CSE cannot recommend a placement in a non-district facility prior to a decision by the facility that it will accept the child as a student. Even if the CSE or the CBST had specifically recommended the League School, I would be compelled to find that its recommendation was premature, and that respondent had not met its burden of proving that it had offered to provide an appropriate placement (Application of a Child with a Disability, Appeal No. 00-020; Application of a Child with a Disability, Appeal No. 98-32; Application of a Child with a Disability, Appeal No. 93-15). In any event, there is no evidence that the CSE or the CBST specifically recommend placement in the League School or any other school.
With respect to the second criterion for an award of tuition reimbursement, the childís parent bears the burden of proof with regard to the appropriateness of the services which the parent selected for the child at the private school during the subject school year (Application of a Child with a Disability, Appeal No. 94-29; Application of the Bd. of Educ. of the Monroe-Woodbury CSD, Appeal No. 93-34; Application of a Child with a Disability, Appeal No. 95-57). In order to meet that burden, the parent must show that the services were "proper under the Act" (Burlington, 471 U.S. at 370), i.e., that the private school offered an educational program which met the childís special education needs (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 child (Application of a Child with a Disability, Appeal No. 94-20).
The special educational needs of petitionerís daughter are more emotional and social, than academic, and are manifested by her high level of anxiety, especially in group settings, high reluctance to interact with others, except on a 1:1 basis, tendency to cry for no apparent reason, poor coping skills and difficulty in negotiating situations that appear to be stressful. The CSE believed that these needs would be best addressed in a small, highly individualized, structured, supportive and nurturing educational environment (Transcript p. 34).
WEDS is a small school of only 43 students, ranging from ages five through eight, and divided among four classes. Petitionerís daughter was in a classroom of ten students and two teachers during the 2000-01 school year. The children in the class ranged in ages from six to eight years old, and were grouped and taught according to their functional levels. Petitionerís daughter received reading instruction in a group of three students whose reading levels ranged from beginning to mid-second grade, and was taught mathematics in a group of four students. All ten students were together during their science, social studies, specials, and writing workshop lessons. The school applies a multisensory mode of teaching, especially in reading, and provides a great deal of positive reinforcement and behavior modification. Academically, the child performed at or above grade level in reading, mathematics and spelling, although she worked slowly and consistently exhibited deficits in her handwriting.
The head teacher of the childís class described the child at the beginning of the 2000-01 school year as a selective mute who rarely spoke, had difficulty making decisions even when she was not required to speak, cried periodically, was unable to express her feelings and was a perfectionist. In a school report dated April 6, 2001, the teacher noted that the child continued to have emotional and social problems, but was showing improvement in some areas. For instance, although she continued to be fearful of others and did not initiate interactions with adults, she would respond to an adult when prompted to do so and would join her classmates at play if she were asked to do so. The teacher noted that, despite her social and emotional difficulties, the child, who was previously described as a non-reader, was now an avid reader who enjoyed her school and class and always presented her homework in a timely manner.
At the hearing two months later, the teacher testified that WEDS had worked with petitionerís daughter in addressing her specific needs and that the child had demonstrated gradual improvement over the course of the school year. The school was working on improving her social relationships and decision-making abilities, and her handwriting and perception deficits were being addressed through occupational therapy. She testified that the childís ability to communicate verbally had improved over the course of the school year (Transcript p. 64). This was confirmed by the social worker, who testified that counseling had progressed from meeting with her individually to having her in a group of three (Transcript pp. 128-129).
The head teacher testified that, despite her emotional issues, the child had improved academically, and that she had exceeded the reading, comprehension and spelling goals established in her IEP. Recognizing her auditory processing and receptive language difficulties, the school had ensured that the childís reading and mathematics programs were very structured and simple (Transcript pp. 64-65). To address her sense of perfectionism and fear of making errors, the teachers would coax and reassure her. The child received speech/language therapy to improve her expressive, pragmatic and social language, as well as her auditory processing skills. According to the teacher, petitionerís daughter had started to express her feelings verbally, make decisions independently and improve socially (Transcript p. 74).
The childís progress report in counseling, dated April 4, 2001, noted that the child appeared less panic-stricken during the 2000-01 school year than she was the year before. She was described as feeling increasingly safe and secure in this school environment, and she was slowly internalizing the routines of the classroom. She had begun to talk and laugh with her counseling partner, and in response to adult praise had begun to ask her teachers for assistance. Her crying spells had decreased from once or twice daily to three or four times weekly (Exhibit 5).
Based upon the record before me, I find that petitioner has met her burden of proving that WEDS provided her child with appropriate special education instruction to address the emotional and social needs that affected her ability to benefit from instruction in the classroom. The unrefuted testimony by the childís teacher and social worker, as well as the childís progress report from WEDS, show that the child made progress socially and emotionally, as well as academically, at WEDS during the 2000-01 school year.
Petitioner must also show that her claim for an award of tuition reimbursement is supported by equitable considerations. I am troubled by petitionerís failure to bring her daughter to the League School to complete the schoolís admission process. As was noted in Application of the Bd. of Educ., Appeal No. 96-9, a parentís failure to make a student available for an admission interview is relevant in determining whether the parentís claim for reimbursement is supported by equitable considerations. I note that the clinical director of the League School did testify that parents of prospective students do tour the school without their children (Transcript p. 90). He further testified that during petitionerís tour of the school on August 7, 2000, "we encouraged her that (sic) she should bring her daughter backÖ.we didnít want to do it that day....and our communication at the end was that she would call us back to schedule a date to bring her daughter back (sic)." (Transcript p. 96). It is unclear from the record whether petitioner was aware that an admission decision could not be made until she brought her daughter to the League School for an interview. Although the clinical director was asked at the hearing whether the school had done any follow-up with petitioner to have the child visit the school, he could not say with certainty whether it had been done. Under the circumstances, I find that there is insufficient evidence to find that petitioner deliberately thwarted the admission process. There is no other evidence to suggest that she failed to cooperate with the CSE. I find that her claim for tuition reimbursement is supported by equitable considerations. However, I caution petitioner to comply with any reasonable request to assist the CSE in locating a suitable placement for her daughter in the future.
THE APPEAL IS SUSTAINED.
IT IS ORDERED that the hearing officerís decision denying tuition reimbursement is hereby annulled; and
IT IS FURTHER ORDERED that respondent shall reimburse petitioner for the cost of her childís tuition at the West End Day School during the 2000-01 school year, upon petitionerís submission to respondent of proof of payment of such tuition.
Albany, New York
August 30, 2002
JOSEPH P. FREY