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 North Shore Central School District
Berkman, Henoch, Peterson & Peddy, P.C., attorneys for petitioner, Roslyn Z. Roth, Esq., of counsel
Rains & Pogrebin, P.C., attorneys for respondent, Sharon N. Berlin, Esq., of counsel
Petitioner appeals from an impartial hearing officerís decision finding that petitionerís claim for an award of tuition reimbursement for her daughterís attendance at the York Preparatory School (York) during the 2000-01 school year was not supported by equitable considerations. Respondent cross-appeals from the hearing officerís findings that respondent had failed to provide a free appropriate public education (FAPE) to petitionerís daughter, and that York was an appropriate placement for the student. The appeal must be dismissed. The cross-appeal must be sustained in part.
When the hearing began on August 1, 2000, the student was 15 years old and was about to begin the tenth grade at York. Respondentís Committee on Special Education (CSE) had classified her as learning disabled (LD), and that classification is not in dispute in this proceeding. York has not been approved by the New York State Education Department to provide instruction to students with disabilities.
I will first address a procedural matter. Respondent argues that the appeal is untimely because the verified petition was not served within 40 days after petitioner received the hearing officerís decision (8 NYCRR ß 279.2[b]). Respondent claims that petitioner received the decision on October 3, 2001, but did not serve the notice of petition and petition until November 14, 2001. Even if so, I note that petitionerís two-day delay was minimal, and there is no evidence that the delay prejudiced respondent. I will therefore exercise my discretion and excuse the delay.
The student entered respondentís school district as a sixth grade student in the fall of 1996. She had previously been classified as learning disabled by the CSE of the Locust Valley Central School District while enrolled in that districtís schools. On December 18, 1996, respondentís CSE classified her as LD. It noted on her individualized education program (IEP) for the 1996-97 school year that she had weaknesses in spelling, written language, mathematics and study skills, and recommended that she receive resource room services (Exhibit 5). At its annual review in May 1997, the CSE recommended that the student continue to receive daily resource room services while in the seventh grade during the 1997-98 school year (Exhibit 6). A speech/language evaluation conducted in January 1998 revealed that she experienced difficulties in understanding speech in the presence of competing background noise, but did not have a central auditory processing deficit (Exhibit 9).
In April 1998, the CSE recommended that the student receive resource room services five times a week and reading services two to three times a week while in the eighth grade during the 1998-99 school year (Exhibit 12). The CSE met several times during that year to adjust her program and institute additional testing accommodations (Exhibits 14, 15). In December 1998, it recommended that the studentís reading services be discontinued and her resource room services be increased to seven periods per week. An amendment to the IEP dated January 1999 reflected a policy of limiting homework to 45 minutes a day and instituted "modified" grading that would reflect effort and attitude in addition to test results (Exhibits 15, 47).
In February 1999, the CSE conducted an educational evaluation to clarify the studentís disability and determine appropriate accommodations for her, specifically in math (Exhibit 16). The testing showed that she had weaknesses in memory, processing speed, and sequential problem solving. The evaluators noted that the student could not tell time beyond the hour. They suggested that she would benefit from being given extended time to do her work, multiple repetitions of small bits of information, the use of multiple modalities for instruction, and use of a calculator. The student received a B in math and Cs in each of her other academic subjects, and her effort and attitude were rated satisfactory or outstanding while in the eighth grade. However, I note she was late to school on 84 days and absent on 26 days (Exhibit 42). The student reportedly made satisfactory progress towards achieving her IEP objectives related to her organizational and note taking skills, and some progress on her other IEP objectives.
The CSE convened in May 1999 to develop an IEP for the studentís ninth grade year. A summary submitted by her eighth grade teachers indicated that she had become school avoidant, and that she had an eating disorder, was overwhelmed and anxious about her performance, felt pressure from peers and school, was in a very fragile emotional state and was withdrawing socially. The report recommended that her "high level of stress needs to be addressed in and outside of school" and noted that a psychiatric evaluation was recommended to the parents (Exhibit 18). The CSE recommended that the student continue to receive resource room services seven to eight times a week, and be placed in a self-contained Individual Learning Class (ILC) math class (Exhibit 19). It further recommended that she be placed in "extended" Regents classes for English, science and social studies, and a humanities lab, classes that was described as a mix of classified and nonclassified students, taught by a regular education teacher and special education teacher, with an aide (Transcript pp. 291-94).
In January 2000, the studentís parents had her evaluated at the Long Island Jewish Medical Center (LIJMC). The LIJMC evaluator noted that the student had begun bingeing and purging to lose weight, but also engaged in that behavior when angry or upset. The student was reported to be depressed and anxious, and her mother reported that she was short tempered. The stressors affecting her were reportedly her motherís illness, and academic and social problems at school. The evaluator reported that the studentís concentration, insight and judgment were impaired, and noted that she had a tendency to ruminate about daily problems and talk about them with her mother over and over. The student was diagnosed as having bulimia nervosa (Exhibit H). It should be noted that a report of this evaluation was not made available to respondent until after the hearing in this proceeding had commenced.
During the 1999-2000 school year, the student became involved in a series of incidents with a former friend who was a fellow student (Transcript pp. 715-750). Their conflict apparently escalated to the point there was an altercation between the studentsí mothers (Transcript pp. 124-127). According to several of respondentís witnesses, the studentís mother magnified her daughterís social and emotional difficulties by appearing at school so frequently that she had to be asked to refrain from doing so (Transcript. pp. 241, 479-80, 748-49). The mother reportedly contacted the guidance counselor 50 to 60 times during the first semester, and made so many telephone calls to the resource room that the phone had to be turned off (Transcript pp. 1475-76, 1558-1600).
In February 2000, the studentís teachers responded to questionnaires provided by her psychiatrist. One teacher described her as quiet and not interacting with others. Her English teacher wrote that the studentís problems arose more from emotional issues rather than learning disabilities. Her physical education teacher described her as "moodless" and suggested a different setting because other students in the class made fun of her (Exhibit 21).
The CSE convened on March 9, 2000 to consider petitionerís request to shorten her daughterís school day and provide partial home instruction (Exhibit 24; Transcript pp. 92-93). Petitioner provided a brief note from the childís physician recommending home tutoring for her because of her emotional problems (Exhibit 22). At the hearing, respondentís school psychologist testified that he had spoken to the physician, who advised him that the note had been written as a favor to a colleague and that he had made no such determination (Transcript. pp. 1519-23). Respondentís special education administrator testified that the CSE denied petitionerís request because staff did not perceive the student as having the level of difficulty that her parent indicated and because it did not want to discourage her from coming to school (Transcript. pp. 93-95). The CSE agreed to recommend a neuropsychological and an auditory processing evaluation (Exhibit 24; Transcript. p. 96). The administrator testified that he had the impression the parents had agreed to provide the CSE with a psychiatric evaluation report and a report from the studentís therapist for the next meeting (Transcript. pp. 97, 99).
The administrator sent a follow-up letter to petitioner on March 13, 2000 in which he reminded her that the CSE was waiting for a complete psychiatric evaluation report to be provided. He also reiterated that the CSE needed guidelines from the studentís treating therapists so that it could evaluate a claim made at the March 9th meeting that an alternate placement was necessary (Exhibit 25). The letter also indicated that the CSE would offer to provide two hours of counseling per week, and a home tutor three hours a week on an interim basis to compensate the student for the time she missed for treatments and therapy (Transcript. pp. 105-06, 1643-44, 1636). The director sent a second letter a few days later to the parentsí attorney, asking for a list of the parentsí concerns so that the CSE could reconvene and address them. (Exhibit 26). There is no evidence that a response was sent.
In April 2000, the student was privately evaluated by a psychologist, who noted that the student had depression, poor self-esteem and bulimia, and that she was being treated with Zoloft and receiving psychotherapy. Although the studentís cognitive skills were in the average range, she had difficulty performing memory dependent tasks or tasks requiring organizational ability. The evaluator reported that the student had problems with reading comprehension, math, organization, and memory, and that her writing was simplistic. He opined that the combination of her cognitive difficulties and associated learning disabilities, as well as the current psycho-social stressors and her emotional response to them, were more than could be managed in a normal high school program. He concluded that the student needed psychiatric and psychotherapeutic help in a setting for students with poor achievement and poor self-image in a small, highly structured program where she could be supervised closely (Exhibit 27).
At the end of ninth grade, the student had passed all her subjects with 70s and 80s, and scored an 85 on the Regents Competency Test (RCT) (Exhibit 33; Transcript p. 318). However, she had missed between 38 and 61 days of class for each subject, and had mastered only three objectives on her IEP, all in composition skills (Exhibit 28). She had apparently received resource room services only five times a week that year, rather than the seven or eight times a week recommended by her IEP, because of scheduling difficulties (Transcript p. 381).
When the CSE reconvened on June 20, 2000, it had just received the private psychologistís report. It had neither the LIJMC report nor a report from the studentís psychiatrist. For the 2000-01 school year, the CSE recommended that petitionerís daughter receive resource room services ten times a week, with two or three of those classes devoted to a math tutorial, as well as 30 minutes of individual counseling twice a week, and placement in extended classes for English, social studies, science and humanities lab (Exhibit 34). The CSE considered the parentís request that respondent place her daughter in York, but rejected that request because the CSE believed that respondent could provide an appropriate program for the student (Transcript pp. 118, 120).
The studentís private psychologist, who had participated in the CSE meeting by telephone, suggested that respondentís program could address the studentís learning difficulties, but that her emotional needs were paramount and should be addressed in another setting (Transcript pp. 118, 642). His opinion was based upon an interview with the student and her parents, rather than any personality or projective testing (Transcript pp. 121-22). The CSE did, however, agree to reconvene to consider reports from the treating psychologist and psychiatrist (Exhibits 34, 49; Transcript p. 130). The administrator testified that he still anticipated that the parents would provide him with a psychiatric report (Transcript p. 131).
In a June 23, 2000 letter, petitioner requested an impartial hearing, claiming that she disagreed with the CSEís recommendation and, without outlining specific reasons for her disagreement, stated that York would be an appropriate placement (Exhibit 35). By letter dated June 29, 2000, respondentís special education director again asked petitioner for information from the studentís therapist and psychiatrist, and attached release of information forms (Exhibits 37, 38). Respondentís attorney wrote a letter on July 14, 2000, also seeking the reports from therapists and psychiatrist, and noting the CSE would meet again to reconsider the studentís program once the reports were received (Exhibit 39).
On July 18, 2000, the studentís mother telephoned the director and read him a report from the studentís psychiatrist (Transcript pp. 138-39). When she failed to fax a copy of the report, respondentís attorney wrote petitionerís attorney asking for the report (Exhibit 40). Petitioner finally provided respondent with a July 26, 2000 note from her daughterís therapist, who asserted that the public school environment was proving to be detrimental to the studentís academic and social development (Exhibit L; Transcript pp. 135-36). A brief undated note by the studentís psychiatrist was provided on or about July 26, 2000 (Exhibit A; Transcript p. 141). In his note, the psychiatrist suggested that the student be placed in another school. Upon receipt of the notes, and learning that a complete psychiatric evaluation had not been done, the special education director requested petitionerís consent for a complete psychiatric evaluation by the school district (Exhibit K; Transcript. pp. 142-43). There is no evidence in the record before me that consent was ever given.
The hearing began on August 1, 2000. The hearing officer denied the districtís motion to remand the matter to the CSE to reconvene to consider a psychiatric report (Transcript p. 28). However, at the end of the fourth day of hearing on August 21, 2000, the hearing officer ordered petitioner to provide a complete report from the studentís psychiatrist (Transcript pp. 798-801). An intake form dated January 14, 2000 prepared by the LIJMC was finally sent to respondent on August 28, 2000 and submitted into evidence at the next hearing on September 7, 2000 (Exhibit H; Transcript pp. 843, 1705).
The CSE scheduled a meeting for September 20, 2000 to discuss the studentís 2000-01 IEP (Exhibit 50). The studentís parents responded that they would not attend a CSE meeting held during a due process hearing, which they claimed was illegal, and sought an order by the hearing officer precluding the CSE from meeting. In an interim decision dated October 24, 2000, the hearing officer denied their request for a stay preventing the CSE from meeting. Although the CSE did meet on September 20, 2000, the hearing officer precluded the introduction of evidence regarding the meeting into the record (Transcript pp. 1065-67, 1647). The hearing concluded on February 8, 2001.
The hearing officer issued his decision on September 27, 2001. He found that respondentís CSE had failed to recommend an appropriate educational program for petitionerís daughter for the 2000-01 school year because it did not include annual goals and short-term objectives on the IEP for the counseling it had recommended she receive, and failed to adequately address her school avoidance problems, her social difficulties, and her feelings of low self-esteem. In addition, he found that the IEP provided an insufficient math program, and that her individualized math class was unduly restrictive. He further ruled that the unilateral placement of the student at York appropriately addressed her special education needs. However, he denied petitionerís request for tuition reimbursement, finding that the equities weighed against such an award because the parents failed to cooperate with the CSE in providing the requested psychiatric evaluation, and because they did not notify the district of their intention to enroll their daughter in York at least ten days prior to her removal from public school, as required by regulation (34 CFR 300.403[d]).
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. Dep't of Educ., 471 U.S. 359 ). I will first consider respondentís cross-appeal from the hearing officerís decision that it failed to offer an appropriate educational program and that York was an appropriate unilateral placement, because petitionerís appeal would be moot if the cross-appeal were sustained.
A board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (Application of a Child Suspected of Having a Disability, Appeal No. 93-9; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Handicapped Child, 22 Ed Dept Rep 487 ). To meet its burden, a board of education must show that its recommended program is reasonably calculated to confer educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176 ). The recommended program must also be provided in the least restrictive environment (34 C.F.R. ß 300.550[b]; 8 NYCRR 200.6[a]). An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals and short-term instructional objectives related to those needs, and provides for the use of appropriate special education services (Application of a Child with a Disability, Appeal No. 93-12; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).
I must concur with the hearing officer that respondent failed to provide an appropriate educational program to the student, given the June 20, 2000 IEPís lack of counseling goals and objectives and the absence of any reference to the studentís social/emotional problems. Respondent argues that it did not have enough information to develop the counseling goals without reports from the childís therapist and psychiatrist. I note, however, that the CSE was already aware that the student had difficulties with attendance, self-esteem, peer relationships, and bulimia, among other issues (Transcript pp. 86, 107, 312, 722, 824).
The special education administrator, who was also a certified school psychologist, testified that he had no disagreement with the private psychologistís report setting forth the studentís social/emotional problems that the CSE had received before it prepared the IEP (Transcript. pp. 160, 234). The CSE also had the 1999 report of the studentís eighth grade teacher indicating that the studentís emotional state was very fragile and that she was becoming withdrawn (Exhibit 18). In addition, the administrator had spoken with the mother on at least two occasions during the 1999-2000 school year regarding her daughterís social problems, eating disorder, stress and absences (Transcript. pp. 236-37). Notwithstanding the availability of this information, the CSE simply noted on the emotional development portion of the studentís IEP that she related well to adults and peers, but needed teacher support and guidance. The IEP indicated that the student was taking medication, but did not reveal why it was being taken. While it might have been reasonable for the CSE to want additional information from the childís psychiatrist to better evaluate her placement and program, I find that it had adequate information to adequately describe her social/emotional development on the IEP and to develop counseling goals and objectives for her.
I must also agree with the hearing officer that the math program proposed by the CSE for the student was insufficient and overly restrictive. There was abundant evidence that the studentís major academic weakness was in math and particularly in problem solving. The CSEís own educational evaluation had revealed that she needed more repetition than the average student due to her memory problems. After participating in the ILC class for math on a daily basis, the student continued to have significantly delayed math skills. There is no reason to believe that they would have significantly improved if she had participated in the recommended two to three periods per week of resource room to be devoted to an individualized math tutorial for the student (Transcript pp. 152-53, 178).
The assistant principal testified that a student could receive credit for a course in which they received two hours of one-to-one instruction or "seat time," and he believed the mathematics instruction provided to the student was adequate (Transcript pp. 891-92). However, the studentís guidance counselor testified that the CSEís original plan for the math instruction was not enough (Transcript p. 1576). Given the clear evidence of this studentís significant learning deficit in math, I find that that she would not have benefited adequately from instruction that took place only twice per week, whether individualized or not.
A studentís 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 Bd. 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 studentís special education, needs (Burlington, 471 U.S. at 370; Application of a Child with a Disability, Appeal No. 94-29). 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 Sch. Dist. Four v. Carter, 510 U.S. 7 ). 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).
Yorkís director of learning and psychological services testified at the hearing on the second day of Yorkís school year about the program that would be provided at the private school. York is a college preparatory school that offers a traditional curriculum, but its students do not take the Regents examinations (Transcript p. 1001). There are approximately 16 students in a class (Transcript pp. 919-20), and about 40 percent of the students are classified as learning disabled or have an attention deficit disorder (Transcript pp. 923-24).
Petitionerís daughter was placed in the lowest track of Yorkís tracking system (Transcript pp. 930-31). She was provided a reading and writing lab, in lieu of taking a foreign language (Transcript p. 953). She was placed in a regular geometry class with 13 students, and after she began struggling with the work, the department chairperson reportedly met with her in study hall for extra help (Transcript pp. 930, 955). She also participated in Yorkís "Jump Start" program, for which parents pay extra money, which consists of a special education teacher assigned to work with 12 students twice a week for 45 minutes before or after school (Transcript pp. 924-25). As described by the director, the Jump Start program is akin to resource room, where students are helped with organization and study skills (Transcript pp. 953-55). The director testified that he believed York was an appropriate program for petitionerís daughter. He explained that he based his opinion solely on her admissions materials, and that he had not observed her in class (Transcript p. 1020).
The director testified that he had no knowledge of the studentís social needs, and that he did not know anything about her history of getting along with peers (Transcript p. 991). He had never seen any psychological reports and did not know that her therapist had diagnosed her as having school phobia (Transcript pp. 993-94, 1023), had not been apprised of her eating disorder until the day before he testified (Transcript pp. 958-59). Although York did not provide any counseling or social skills training to the student, she and petitioner testified that she was happy and doing well at York. However, I cannot ignore the evidence of her social and emotional needs in the record, and simply assume that they were being addressed simply because she was attending York.
In addition, I note that at York, the student received no primary special education instruction for mathematics, her area of greatest academic need. Her report card from York in November 2000 indicated that she had received a 72 in geometry, two points above failing (Exhibit 54). The only specialized academic assistance she received were two 45-minute sessions a week with the Jump Start teacher before or after school, which were not devoted solely to improving the studentís math skills. Having already determined that two or three periods of resource room per week in respondentís schools would have been inadequate to address the studentís math needs, I reach a similar conclusion with regard to the limited assistance provided by Yorkís Jump Start program. As such, I find that the program was not adequate to meet her educational needs.
In view of my finding that petitioner has not met her burden of proof with regard to the second of the three criteria for an award of tuition reimbursement, I must find that she is not entitled to such an award. Consequently, I do not reach the issue of whether her claim for tuition reimbursement is supported by equitable considerations.
THE APPEAL IS DISMISSED.
THE CROSS-APPEAL IS SUSTAINED IN PART.
IT IS ORDERED that the hearing officerís decision is hereby annulled to the extent it found that petitioner had demonstrated that York had provided an appropriate educational program to her daughter during the 2000-01 school year.
Albany, New York
October 21, 2002