The State Education Department
State Review Officer

No. 01-095




Application of a CHILD WITH A DISABILITY, by his parent, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the City School District of the City of New York

Neal Howard Rosenberg, Esq., attorney for petitioner

Hon. Michael A. Cardozo, Corporation Counsel, attorney for respondent, Paul Kotlyar Esq., of counsel



        Petitioner appeals from an impartial hearing officerís decision denying his request for an award of tuition reimbursement for the expense of his unilateral placement of his son at the Stephen Gaynor School (Gaynor) for the 2000-01 school year. The appeal must be dismissed.

        Petitioner asks me to excuse his delay in commencing this appeal. He acknowledges that the petition was served more than 40 days after receipt of the hearing officerís decision (cf. 8 NYCRR 279.2[b]), but he asserts that his attorneyís access to his office was impaired by the World Trade Center disaster. Petitioner also asserts that a notice of intention to seek review was served on respondent on August 24, 2001, that respondent was placed on notice at that time and has suffered no prejudice due to petitionerís delay in filing. Respondent does not dispute those assertions. I will exercise my discretion, and excuse petitionerís delay.

        Petitionerís son was 11 years old when the hearing in this proceeding was held in the summer of 2001. The student attended public school through the second grade during the 1997-98 school year. He has been diagnosed as having an attention deficit hyperactivity disorder (ADHD) and dyslexia, and takes Ritalin for his ADHD (Transcript pp. 9, 53). The student began counseling with a psychologist at respondentís expense in the fall of 1999 because of disruptive behavior in the classroom and poor self-esteem (Exhibit F).

        The student was initially referred to respondentís Committee on Special Education (CSE) for an evaluation in June 1997. The CSE determined that petitionerís son did not meet the criteria for classification as a child with a disability. In August 1998, the studentís second grade teacher and guidance counselor recommended that petitionerís son be placed in a special education school (Exhibit C). At some point thereafter, the CSE reportedly classified the student as learning disabled and recommended that he be placed in a state-approved private school (Exhibit 4). Petitioner was reportedly unable to locate a state-approved private school for his son, and he unilaterally enrolled him in Gaynor. The child remained at Gaynor through the 2000-01 school year.

        In preparation for the CSEís annual review in February 2000, petitionerís son participated in various evaluations in the fall of 1999. A speech/language therapist reported that the studentís speech was intelligible and fluent. Despite some difficulty assembling the parts of sentences, the studentís expressive and receptive language skills as measured on the Clinical Evaluation of Language Fundamentals-3 were within normal limits. The therapist noted that the student had been receiving therapy, but recommended that none be provided in the future (Exhibit 6).

        An educational evaluation was completed in November 1999. The evaluator reported that petitionerís son had achieved standard scores of 82 for letter-word identification, 98 for passage comprehension, 107 for mathematical calculation, 117 for applied problems, 119 for science, and 120 for social studies on the Woodcock Johnson Pyschoeducational Battery - Revised. The evaluator noted that the student compensated for difficulties with phonics and structural analysis by using context and language clues while reading, and that he tended to rely on his knowledge of sight words. The studentís cursive writing was neat, and he observed most of the rules of grammar. The evaluator noted some spelling errors in the studentís written expression (Exhibit 5).

        In December 1999, a school psychologist updated the studentís previous evaluation. He noted that in the March 1999 evaluation, petitionerís son had achieved a composite score of 112 on the Stanford Binet Intelligence Scale 4th Edition, which was in the high average range. In the December update, the student made one error on a test of his visual motor integration skills, which the evaluator indicated was not a major delay in the studentís skills. A drawing by the student suggested the possibility of a delay in his graphomotor skills. Projective testing revealed feelings of sadness, inadequacy, and alienation. The psychologist noted that the student was aware of his learning problems, and that he depended upon his parents for nurturance and support (Exhibit 7).

        A midyear progress report from Gaynor indicated that the studentís independent reading recognition skills were at a 1.8 to 2.0 grade level, while his comprehension skills were at a 3.0 grade level. His spelling skills were reported to be at a 2.0 grade level, and his math skills were reported to be at a 4.3 grade level. The report also indicated that the studentís behavior was at times very inappropriate, and that he was impulsive (Exhibit 8). A school psychologist who observed the student in class at Gaynor in January 2000 reported that the studentís level of attention varied, and that he often conversed with a peer during the class (Exhibit 9).

        On February 14, 2000, the CSE conducted its annual review, at which the studentís teacher at Gaynor participated by telephone. The teacher reported that petitionerís son was easily distracted, and required prompting to remain on task (Exhibit 3). The CSE recommended that petitionerís son remain classified as learning disabled, and that he be placed in respondentís Modified Instructional Services-I (MIS-I) program with a student: teacher ratio of 15-1. The CSE also recommended that the child receive 30 minutes of group and 30 minutes of individual speech/language therapy each week to address his language deficits, and 30 minutes of group and 30 minutes of individual counseling each week to address his social and emotional concerns. On the studentís individualized education program (IEP), the CSE indicated that he should have preferential seating near his teacher and should use graphic organizers (Exhibit 1).

        On May 24, 2000, the studentís parents met with the placement officer who offered a placement in a MIS-I program at P.S. 24. Petitioner disagreed with the proposed placement because he believed that returning to P.S. 24 would adversely affect his sonís emotional well being (Transcript pp. 66-67). He enrolled his son in Gaynor for the 2000-01 school year. On December 13, 2000, petitioner requested an impartial hearing. The hearing in this matter was held on May 30 and June 21, 2001.

        On August 15, 2001, the impartial hearing officer rendered her decision. She found that the CSE had adequately evaluated petitionerís son and had sufficient information to accurately identify his educational needs. She further found that the studentís IEP accurately reflected the results of his evaluations. Relying upon the testimony by the teacher of the proposed MIS-I class that the studentís IEP goals could be met in her class, the hearing officer found that the proposed MIS-I placement would have been appropriate for the student. In doing so, she noted that a profile of the students in the class revealed that their functional levels exceeded a three-year range. The hearing officer found that the petitionerís stated reason for rejecting the proposed placement (the difficulty the student had three years ago in the general education program at P.S. 24) was an insufficient reason for rejecting the placement, and denied his request for an award of tuition reimbursement.

        Petitioner appeals from the hearing officerís decision on a number of grounds. He challenges the composition of the CSE by questioning the qualifications of the regular education teacher who was a member of the CSE. The Board of Education argues that petitioner is precluded from raising the issue in this appeal because he failed to raise it at the hearing. A partyís failure to raise an issue at the hearing would normally preclude the State Review Officer from considering that issue because the record would not afford a basis for deciding the issue (Application of a Child with a Disability, Appeal No. 01-038; Application of a Child with a Disability, Appeal No. 98-14). Nevertheless, the State Review Officer has on occasion determined sua sponte that a CSE was not properly composed, when a cursory examination of the record reveals that a CSE did not include each of its required members.

        The Individuals with Disabilities Education Act was amended in 1997 to provide that an IEP team, or CSE in New York, must include at least "one regular education teacher of the child", if a child is or may be participating in the regular education environment (see also 34 C.F.R. 300.344[a][2] and 8 NYCRR 200.3[a][1][ii]). Petitionerís son was not in a regular education program at Gaynor when the CSE met, and the CSE did not propose that he receive any instruction in regular education classes during the 2000-01 school year. In any event, the record reveals that an individual described as being a regular education teacher was a member of the CSE. Petitioner asserts that the individual has not taught the appropriate grade and no longer teaches. Respondent denies petitionerís assertion. This is the kind of factual issue that should be raised and addressed when a case is presented at a hearing. Although I caution respondent to ensure that its designees comply with the standards set forth in law, I cannot conclude on this limited record that it has not done so (Application of a Child with a Disability, Appeal No. 00-044).

        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 [1983]). 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 [1982]). 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][1]). 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).

        Petitioner asserts that the impartial hearing officer did not give appropriate consideration to his sonís educational and emotional needs in reaching her determination that respondent had offered to provide an appropriate educational program to the student. The studentís IEP uses standardized test results, as well as written descriptions, to identify his academic performance and learning characteristics. It indicates that he processes information slowly, and that he needs to review information. The IEP describes the studentís difficulty with decoding, and notes that he has no phonemic awareness. It indicates that difficulty with fact retrieval hinders his ability to do word problems in math, and it describes his spelling and writing skills. In describing the studentís social/emotional performance, the IEP indicates that it is difficult for him to maintain his attention, and that he has had difficulty with peer relationships. It also notes that he is sensitive about his academic difficulties, which affect his self-esteem. The IEP indicates that he is taking medication for his attention difficulties, and that he attends weekly therapy sessions outside of school. I concur with the hearing officerís finding that the IEP adequately described the studentís educational needs.

        Petitioner questions the manner in which his sonís IEP goals were prepared, because at least some of them were prepared in advance of the CSE meeting (Transcript p. 42). As was noted in Application of a Child with a Disability, Appeal No. 00-068, there is nothing wrong with this practice, provided that the studentís parents are advised that the goals are suggested goals. Petitioner does not allege that he was denied the opportunity to discuss the proposed goals, and he does not object to their content. The studentís IEP includes annual goals relating to his slight deficit in passage comprehension and a significant deficit in letter-word recognition. It also requires him to continue developing his inferential skills, which will assist him in reading. There are four annual goals related to improving the studentís writing skills, and there are goals for improving his speech and language skills. The IEP has goals to help the student recognize social cues and appropriate social behavior, and it includes a goal to improve his ability to remain on task. I find that the studentís IEP goals are related to the studentís educational needs, and are drafted in a manner that is consistent with his present levels of performance.

        A CSE must recommend an appropriate level of special education services to afford a student a reasonable opportunity to achieve his or her IEP goals. In this instance, the CSE recommended a full time placement in an MIS-I class, which means that petitionerís son would have received primary special education instruction throughout the school day. There does not appear to be any dispute about his need for this kind of instruction. The teacher of the recommended class testified at length about the methods that she would have used to enable the student to meet his IEP goals. Although petitioner appears to argue that a class with a 15: 1 student: teacher ratio is too large for his son, I am not persuaded by the record before me that it would have been inappropriate for the student to have been instructed in such a class. The MIS-I teacher testified that petitionerís son fit in well with the other students in her class and that his educational needs could be met in her classroom. The CSE also recommended counseling to assist the child in adjusting to his new placement, as well to deal with his frustration and improve his self-esteem.

        Petitioner alleges that the proposed MIS-I class had 15 students and was therefore full. The Board of Education denies this allegation. The class profile that is in the record indicates that were 15 students in the class on April 26, 2001, approximately seven months after the start of the 2000-01 school year. It is reasonable to assume that respondent assigned another student to the class when it learned that petitioner's child would not be attending. Upon the record that is before me, I find that petitionerís allegation is without merit.

        Having considered the entire record, I concur with the hearing officerís determination that the Board of Education has met its burden of proving that it had offered to provide petitionerís child with a free appropriate education during the 2000-01 school year. 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 parentís claim (Burlington Sch. Comm. v. Depít of Educ., 471 U.S. 359 [1985]). In view of my finding that respondent has met its burden of proof, I find that petitioner is not entitled to an award of tuition reimbursement for the 2000-01 school year.

        I have considered petitionerís other contentions, and find them to be without merit.







Albany, New York


September 18, 2002