The State Education Department
State Review Officer

No. 01-109




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

George Zelma, Esq., attorney for petitioner

Hon. Michael A. Cardozo, Corporation Counsel, Martin Bowe, Esq., of counsel



        Petitioner appeals from the decision of an impartial hearing officer finding that the Board of Education had offered to provide an appropriate educational program to petitionerís son for the 2001-02 school year. The impartial hearing officer denied the parent's request for an award of tuition reimbursement for the cost of her sonís attendance at the Lowell School for that school year. The appeal must be sustained in part.

        Petitionerís son was 12 years old and had just completed the fifth grade at the Lowell School at the time of the impartial hearing in the summer of 2001. The studentís educational history is set forth in Application of a Child with a Disability, Appeal No. 00-078, and will not be repeated at length in this decision. He has been diagnosed as having an attention deficit hyperactivity disorder (ADHD), for which various medications have been prescribed.

        While enrolled in the fourth grade of St. Matthewís Lutheran School during the 1999-2000 school year, the student was referred by petitioner to respondentís Committee on Special Education (CSE). Petitionerís son had reportedly experienced academic difficulty while in the early elementary grades. The studentís teacher at St. Matthewís reported that the studentís inability to remain focused made it difficult for him to follow directions in a large group.

        After conducting evaluations, the CSE met in March 2000 to classify the student and recommend an education program for him. The CSE recommended that he be classified as learning disabled and that he receive resource room services while enrolled in respondentís regular education program. Petitioner did not accept the CSEís program recommendation, and requested a hearing. She also unilaterally enrolled her son in the Lowell School. The impartial hearing was held on August 11, 2000 and a final decision was issued on January 11, 2001. The hearing officer found that the school district's program was appropriate, and denied the parent tuition reimbursement.

        Petitioner appealed from the hearing officerís decision. In April 2001, before petitionerís appeal was decided, respondent reportedly agreed to reimburse petitioner for the cost of her sonís tuition during the 2000-01 school year. In May 2001, the hearing officerís decision was annulled, upon a finding that the CSE did not have each of its required members when it prepared the studentís individualized education program (IEP). However, petitionerís request for tuition reimbursement was denied because she failed to prove precisely how the Lowell School program met the studentís special education needs.

        On September 25, 2000, petitioner again referred her son to the CSE, because she believed the student needed to be placed in a small, self-contained special education class. In November 2000, the school district conducted a social history, a psychological and an educational evaluation, and a classroom observation. A physical examination was also obtained. In the social history, petitioner indicated that her son was doing well in the Lowell School, and that he liked school. She also indicated that her son did his homework and was prepared for school (Exhibit 7).

        The school psychologist who evaluated the student reported that he had demonstrated average cognitive skills, but noted that the studentís subtest scores for general fund of information and his ability to reproduce familiar forms fell into the low average range. The psychologist described the student as personable and easily engaged. Projective tests indicated that the student had difficulty handling social situations that were filled with strong emotional content (Exhibit 8).

        An educational evaluation was conducted on November 3, 2000. On the Kaufman Test of Education Achievement (KTEA), the student achieved scores in the 66th percentile for decoding, the 77th percentile for reading comprehension, the 21st percentile for math applications, the 13th percentile for math computations and the 32nd percentile for spelling. The evaluator noted that the studentís reading skills were above grade level, but his math skills were at an upper third grade level. The Woodcock Language Proficiency Battery revealed that the studentís expressive language skills were somewhat delayed. The studentís composition skills were reported to be adequate (Exhibit 10). At the hearing, the evaluator testified that the studentís handwriting was labored, but the content of his writing sample was typical of a fifth grade student (Transcript p. 99).

        A school social worker who observed the student at the Lowell School on November 20, 2000 noted that the student did not seem to be distracted, and demonstrated appropriate behavior. She believed that he understood the lesson that was being taught, and was able to understand the mistakes he had made with additional instruction from the teacher. The social worker noted that at one point in time the student appeared to be distracted, but that he was able to respond to the teacher's redirection (Exhibit 11).

        In a report dated November 1, 2000, the studentís psychiatrist opined that the student required a small self-contained classroom staffed by professionals familiar with ADHD, and recommended that the student remain at the Lowell School (Exhibit A).

        On November 22, 2000, the CSE reviewed the results of the studentís evaluations with petitioner. The CSE meeting minutes indicate that that the studentís teacher at the Lowell School had described the studentís attention difficulties, and had indicated that he responded to immediate redirection and worked well with a point-based behavior management program (Exhibit 5). The CSE recommended that the student be placed in a regular education class and receive daily resource room service and weekly counseling sessions to help him transition to the public school. A behavior intervention plan was added to the studentís IEP.

        On December 19, 2000, petitioner rejected the CSE recommendation because she believed that the placement site was too large and because it did not provide for full-day special education intervention. Petitioner requested another CSE meeting. In February 2001, the Lowell School issued a mid-term summary behavior checklist which indicated that the student had difficulty attending to task, accepting adult authority, controlling his impulses and expressing his frustrations in an appropriate manner (Exhibit 12).

        The CSE reconvened on February 15, 2001. The studentís psychiatrist and a teacher from the private school participated in the meeting by telephone. Petitioner and her advocate asserted that the studentís need for constant supervision rendered the CSEís proposed placement inappropriate. The studentís teacher discussed the studentís impulsivity and poor organizational skills, and described his as passive learner who needed much teacher supervision. The CSE again recommended a regular education placement with daily resource room services and counseling once per week. On February 21, 2001, respondent sent petitioner a final notice of recommendation offering resource room and counseling services at P.S. 152 (Exhibit 13).

        On March 20, 2001, petitioner again rejected the proposed public school placement, and kept her son in the Lowell School for the rest of the 2000-01 school year. The student received mostly Bís on his final report card from the Lowell School. By letter dated June 13, 2001, petitioner was advised by respondent that next yearís placement would be at I.S. 218. Petitioner asserts she never received said notice. She requested an impartial hearing.

        The impartial hearing in this matter began on July 10, 2001 and concluded on August 9, 2001. At the hearing, petitioner asserted that the proposed placement at I.S. 218 would be inappropriate for her son, and that the Lowell School could meet her sonís needs during the 2001-02 school year. She sought an award of tuition reimbursement for that school year. In her decision dated September 11, 2001, the hearing officer noted that there was a serious discrepancy in the testimony of the various witnesses with respect to the studentís emotional needs. The principal and the studentís teacher at the private school testified about the violent themes the student had expressed in writing, while neither the studentís psychiatrist nor the school districtís psychologist had reported any such concern. The hearing officer also noted that there was some uncertainty about the present level of the studentís reading skills. The studentís teacher testified that the studentís skills were at the fourth grade level, while the studentís standardized test results were at or above grade level. The hearing officer concluded that the Board of Education had met its burden of proof that it had offered to provide a free appropriate public education (FAPE) to petitionerís son for the 2001-02 school year, and she denied petitionerís request for an award of tuition reimbursement.

        Petitioner challenges the hearing officerís decision on the grounds that she did not state the basis for her conclusions. The Regulations of the Commissioner of Education require that a decision of the impartial hearing officer be based upon the record and "shall set forth the reasons and the factual basis for the determination" (8 NYCRR 200.5[I][4][ii]). The hearing officer summarized the respective positions of the parties and the testimony of the witnesses. After noting the differences in the witnessesí descriptions of the studentís emotional needs and his reading skills, the hearing officer concluded that respondent had met its burden of proof. I agree with petitioner that the hearing officer did not explain the basis for her conclusion, as she should have done pursuant to the regulation.

        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 (Bd. 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 studentís 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).

        Although petitioner suggests that the CSE failed to adequately evaluate her son because part of his evaluation was conducted in Spanish which the student does not speak, I note that respondent denies the allegation. I find nothing in the record to substantiate her claim that her son was inadequately evaluated, and I further find that the studentís IEP adequately describes his needs. The record reveals that the student has both academic and social/behavioral needs. Although there was some disagreement at the hearing about the studentís performance in reading, there is no evidence of a significant deficit in reading. Indeed, the record indicates that he was at or above grade level by the end of the 2000-01 school year. As noted above, the studentís written expression was grade appropriate. His disability was manifested academically in his poor performance when required to do mathematical calculation and applications. When tested in November 2000, the student did not know basic math facts at an automatic level and his understanding of math concepts was significantly delayed.

        Petitionerís son also has difficulty with organization and often forgets his books and his homework. The studentís psychiatrist testified that the studentís impulsivity and hyperactivity were being controlled by medication, but he continued to be distractible (Transcript p. 305). She opined that behavioral difficulties affected the studentís ability to learn (Transcript p. 310). Neither the psychiatrist nor the school psychologist who had administered projective tests to the student in November 2000 reported any violent themes in the studentís personality, although the private schoolís principal and the studentís teacher testified about his drawings and his propensity to tease the girls in his class. However, none of the studentís drawings were entered into evidence, and the private school employees acknowledged that he had not committed any acts of physical violence. Nevertheless, the CSE noted on the studentís IEP that he tended to handle difficulties on a cognitive level and that he could be provocative with peers. The IEP included annual goals to improve his peer interaction with more appropriate actions and to improve his ability to handle feelings of insecurity.

        Petitioner does not challenge her sonís IEP goals, but she does challenge the adequacy of the special education services recommended by the CSE. The CSE recommended that the student receive one period of resource room services per day resource room to address his organizational needs and his math deficit. Having considered the nature and extent of the studentís needs, I concur with the hearing officer in finding that the studentís deficit in math and his organizational difficulties could have been addressed appropriately with supplementary special education instruction in a resource room. There is no evidence that he required primary special education instruction in mathematics. He does require practice and assistance to memorize the basic math facts, and perhaps should have a copy of arithmetic tables with him when he solves math problems. As noted above, the studentís reading and writing skills are satisfactory. There was no need for primary or supplementary special education instruction, i.e., the use of specialized instructional techniques, for most of the school day. However, that does not end the matter.

        Although petitionerís son appeared to concentrate satisfactorily during one-on-one evaluations, there is substantial evidence of his distractibilty, which would clearly affect his ability to benefit from instruction in a large group setting such as a regular education class. The CSE appears not to have taken this into account when it recommended that he be enrolled in a regular education class without the assistance of an aide or a consultant teacher. According to the record, respondentís regular education classes have approximately 30 students. I am not persuaded that a regular education teacher with 30 other students in the class would be able to give petitionerís son the attention needed to keep him on task so that he could benefit from instruction in such class. Accordingly, I find that the respondent has failed to meet its burden of proving that it offered to provide a FAPE for the 2001-02 school year.

        Petitioner bears the burden of proof with regard to the appropriateness of the services to be provided to her son by the Lowell School during the 2001-02 school year (Application of a Child with a Disability, Appeal No. 95-57; Application of a Child with a Disability, Appeal No. 94-29). In order to meet that burden, she must show that the private school offered an educational program which met the studentís special education needs (Burlington Sch. Comm. v. Depít of Educ., 471 U.S. 359, 370 [1985]; 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).

        The student was placed in a 12:1+1 class at the Lowell School during the 2000-01 school year. At the hearing, his teacher described various instructional techniques that were used in her classroom (Transcript p. 424), but she did not indicate how the studentís deficits in math were addressed. I note that the teacher testified that the student was being instructed at the fourth grade reading level even though the record suggests that his skills were at the fifth grade level or better (Transcript p. 419). The principal of the school testified that the reading skills of the children in this studentís class ranged from a grade level of 2.9 to a level of 6.2 (Transcript p. 372). The foregoing raises concerns about whether the school was truly meeting the studentís academic needs.

        At the hearing, the studentís teacher at the Lowell School testified that with structured supervision, petitionerís son could participate with regular education students in at least some activities (Transcript p. 435). I have found that the student did not require a full time special education placement. The requirement that each child with a disability be placed in the least restrictive environment has been held to apply to unilateral parental placements (M.S. v. Bd. of Educ., 231 F.3d 96, 105 [2d Cir. 2000]), but it must be balanced against the requirement that each child receive a FAPE (Briggs v. Bd. of Educ., 882 F.2d 688, 692 [2d Cir. 1989]). Upon the record that is before me, I find that a full time 12:1+1 special education class was far too restrictive a placement for this student. This finding, coupled with my concern about the private schoolís meeting the studentís academic needs, leads me to conclude that petitioner has failed to meet her burden of proof about the appropriateness of the services that she obtained for her son at the Lowell School during the 2001-02 school year. Since she has not prevailed with respect to the second of the three criteria necessary for an award of tuition reimbursement, I find that petitioner is not entitled to such relief.



        IT IS ORDERED that the decision of the hearing officer is hereby annulled to the extent that it found that respondent had demonstrated the appropriateness of its recommended program.






Albany, New York


October 23, 2002