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
Hon. Michael A. Cardozo, Corporation Counsel, attorney for respondent, Blanche Greenfield, Esq., of counsel
Petitioner appeals from the decision of an impartial hearing officer which denied on equitable grounds her claim for tuition reimbursement by respondent for the 2000-01 and part of the 2001-02 school years during which her daughter received tutoring services from the Sylvan Learning Center (Sylvan). The appeal must be dismissed.
Respondent asks that I excuse its delay in answering the petition and accept its answer. The petition was served on January 17, 2002. Respondent did not serve its answer until April 12, 2002. Respondent asserts that the New York City Law Department handles a large number of cases, and the assigned attorney had a number of litigation demands. Although petitioner did not oppose respondentís request, I find that respondent has not established a good cause for its delay of approximately ten weeks. Therefore, I will not accept its answer (Application of a Child with a Disability, Appeal No. 01-028; Application of a Child with a Disability, Appeal No. 00-017).
Petitionerís daughter is eight years old. She received early intervention services, and subsequently attended a 12:1+2 class for preschool. For the 1999-2000 school year, the Committee on Special Education (CSE) of Community School District 23 (CSD 23) recommended that the child be classified as speech impaired, and that she be placed in an integrated class within a general education program, with a student:teacher ratio of 12:1+1, and receive individual occupational therapy to improve her fine motor skills, and group speech/language therapy to increase her language ability (Exhibit 12). Petitionerís daughter was enrolled in an integrated Modified Instructional Services-IV (MIS-IV) kindergarten class at P.S. 298 in CSD 23 (Exhibits 7, 34).
On December 14, 1999, the CSE met to develop a new IEP. Petitioner did not attend this meeting, nor did the childís regular education teacher. The CSE recommended that the child remain classified as speech impaired and continue in an integrated 12:1+1 class until the CSEís next scheduled review in December 2000 (Exhibit 11). Petitioner was reportedly dissatisfied with her daughterís placement and sought a private school placement for her (Transcript p. 18).
The CSE reconvened on May 10, 2000 to review the childís placement. No parent member attended that meeting. Test results showed that the child had scored at a pre-k instructional level in reading comprehension and computation. The CSE also noted that the child had difficulty maintaining attention and often had to be re-focused. She demonstrated poor graphomotor skills, reversing both her numbers and letters, and wrote with inconsistent letter size, space and alignment. The CSE prepared a new IEP with a projected duration of one year to May 10, 2001. The childís classification and placement remained the same (Exhibit 13).
By memorandum dated May 23, 2000, petitioner asked the assistant chairperson of CSD 23ís CSE to reassign her child to another school with similar programming because she believed that P.S. 298 was not meeting her childís needs (Exhibit 14). By letter dated July 19, 2000, the CSEís assistant chairperson informed petitioner that she should contact the CSE regarding the childís placement in September 2000 (Exhibit 25). The child remained in P.S. 298 during the 2000-01 school year.
On March 8, 2001, petitioner wrote to the CSE of Community School District 22 (CSD 22) seeking the admission of her daughter to an inclusion program at P.S. 321 in CSD 22 in the fall of 2001 (Exhibit 28). She was reportedly advised that the superintendent of schools for CSD 22 would have to grant a variance in order for her daughter to attend school in CSD 22. The child reportedly began receiving tutoring services at Sylvan on or about March 17, 2001.
In a letter to the CSE chairperson in CSD 23 dated April 17, 2001, petitioner asserted that her daughterís inclusion program in CSD 23 was not meeting the childís educational needs, and that the program was neither age nor grade appropriate for her child. Petitioner requested that the CSE of CSD 23 develop a new IEP and consider placing her child in a different school for the 2001-02 school year (Exhibit 29). On April 26, 2001, the chairperson of CSD 23ís CSE indicated that the CSE would meet to determine an appropriate program and placement site for the child upon completion of all the necessary assessments (Exhibit 17).
In preparation for that meeting, the childís teacher reported on May 15, 2001 that petitionerís child was obedient, but was slow to accomplish her assigned tasks and had to be constantly refocused. The child could not count with recognition, and she could not mathematically work with two-digit numbers. She did not read with understanding, nor could she pronounce or recognize the words she read. Her writing was weak. Although the childís performance had improved during the school year, the teacher suggested that the child was in need of placement in a small setting with an individual paraprofessional (Exhibit 18). A classroom observation was conducted on May 29, 2001. The examiner noted that the child appeared lethargic and sad, and noted that she did not interact with her peers. She was very quiet during the observation and needed additional time to respond to the examinerís questions (Exhibit D).
By letter dated May 15, 2001, petitioner asked that an educational planning conference scheduled to be held on May 30, 2001 be postponed until her childís evaluation was completed by the University Hospital of Brooklynís Learning Center. She also requested that her childís occupational therapist be instructed to bring her evaluation and observation reports with her to the conference, and provide a copy of these reports to petitioner in advance of the conference (Exhibit 32). The CSE chairperson agreed to her request (Exhibit 36).
A speech/language progress report dated June 21, 2001 indicated that the childís receptive/expressive skills were severely delayed, with severe deficits in articulation and oro-motor skills. The report noted that the childís auditory memory and processing skills were also poor, and that a more extensive program was needed to address her needs. Nevertheless, the speech teacher recommended that there be no changes in the service provided to the child (Exhibit 15).
The childís elementary school report card for the 2000-01 school year, dated June 22, 2001, indicated that she received a final rating of "N" (needs improvement) in reading, oral language, mathematics, social studies and work habits, an "I" (improving) in written language and health education, and an "S" (satisfactory) in computer, music, art, physical education, homework and personal development (Exhibit F).
On July 2, 2001, petitioner requested an impartial hearing, and one was scheduled for August 8, 2001. On that date, the parties agreed to certain terms, in lieu of continuing with the hearing. They agreed that a new CSE review would be held on September 6, 2001, for which petitioner would be given written notification. They also agreed that petitionerís child would receive independent educational and psychological evaluations, and that petitioner would submit the results of those evaluations to the CSE within the following two weeks. Petitioner reserved her right to request another impartial hearing in the event that she was dissatisfied with the CSEís new recommendation and proposed services. Additionally, the parties would comply with the terms of the stipulation by September 16, 2001. Petitioner indicated on the record that her daughter would not attend school until the matter was resolved (Exhibits 3, 21). The hearing officer subsequently reduced the stipulation to an order dated September 26, 2001 (Exhibit 2).
The independent educational evaluation was conducted on August 30, 2001 by Supreme Evaluations, Inc. The evaluator described the child as an interactive and responsive child who expressed her dislike for her current school and her wish to attend another school because the work was too hard and some of the students were unkind to her. The evaluator reported that the child had a short attention span, and was functioning below grade level in reading, writing and especially in mathematics. Distractibility and difficulty following directions interfered with her ability to stay focused and complete assignments in a timely manner. The evaluator noted that the child would benefit from specific curriculum strategies aimed at improving her academic performance (Exhibit 6).
Petitioner was notified by letter dated August 30, 2001 that the CSE would meet with her on September 6, 2001, and was asked to provide all independent assessments prior to the meeting (Exhibit 30). On September 6, 2001, a CSE consisting of a social worker, a psychologist and an educational evaluator, convened to review the evaluative data. A parent member did not attend, and the minutes of the meeting noted that petitioner "did not object to the presence of a parent member and was not interested in declining participation." When asked why she had not provided the results of her childís independent evaluations to the CSE, petitioner explained that the reports were to be forwarded directly to the CSE by the testing agency, and that the psychological evaluation was still pending. The CSE explained to petitioner that she had the right to have her child remain in her current academic placement, but petitioner stated that the child, who was receiving instruction at Sylvan, would remain at home until the issue before the CSE was resolved. The CSE recommendation was deferred pending receipt of the independent educational and psychological evaluation reports (Exhibit 22).
A September 20, 2001 occupational therapy progress report noted that the childís distractibility and attention span ranged from one to three minutes. She could not tie her shoe laces, was unable to carry out motor activities in a smooth and efficient manner, and exhibited awkward posture and movement during play activity. Continued occupational therapy was recommended (Exhibit 8).
The independent psychological evaluation was conducted in the childís home on September 21, 2001 by Supreme Evaluations, Inc. The psychologist noted that the child was difficult to understand at times because of her poor articulation. She demonstrated some impulsivity and distractibility, which progressed throughout the test. On the Stanford-Binet Intelligence Scale-Forth Edition (S-IV), the child attained a test composite score of 66, which placed her overall cognitive functioning within the deficient range, a Verbal Reasoning score of 90 (average range), an Abstract/Reasoning score of 52 (deficient range), a Quantitative Reasoning score of 70 (borderline range) and a Short Term Memory score of 60 (deficient range). However, the psychologist cautioned that the childís performance on the SB-IV may not have reflected her true abilities because of her fatigue, distractibility and articulation difficulties. The child obtained a standard score of 84 on the Developmental Test of Visual Motor Integration (VMI), which placed her within the 14th percentile range. Her adaptive skills measured from low to adequate on the Vineland Adaptive Behavior Scale, and her overall adaptive skills scored within the deficient or low range. Although her socialization skills were reportedly strong, the childís daily living skills were significantly weak and below those of her chronological peers. Her fine motor skills also appeared to be delayed (Exhibit 7).
By letter dated October 1, 2001, the CSE notified petitioner that it had scheduled a meeting for October 9, 2001 to discuss her childís educational needs (Exhibit 4). A letter to the CSE from P.S. 298, dated October 5, 2001, confirmed that the child was not attending school during the 2001/02 school year (Exhibit 23). At the meeting on October 9, 2001, the childís general education teacher participated by telephone. The CSE recommended that petitionerís daughter remain classified as learning disabled and be placed in a 12:1+1 special education class with 30 minutes of individual occupational therapy twice per week and 30 minutes of speech/language therapy in a group twice per week (Exhibit 5).
On October 9, 2001, petitioner requested an impartial hearing seeking reimbursement for her expenditure of $5000 for tutoring by Sylvan (Exhibits 1,B). The hearing was held on November 2 and November 30, 2001. At the hearing, petitioner stipulated that her daughterís classification and placement pursuant to the CSEís October 9, 2001 recommendations were appropriate (Transcript pp. 15, 54-55). The hearing officer defined the issue at the hearing as whether petitioner should be reimbursed for her tuition expenses at Sylvan for part of the 2000-01 school year and for September-October of the 2001-02 school year during which her child attended Sylvan. The CSE contended that the recommended program which the child attended during the 2000-01 school year was appropriate and that it had been unable to develop a timely IEP for the 2001-02 school year because the CSE did not receive the results of the independent assessments until October 9, 2001. Petitioner contended that she was entitled to reimbursement for her daughterís tutoring services at Sylvan because the CSE had failed to give the child an appropriate education during the 1999-2000 and the 2000-01 school years. She also sought reimbursement for the Sylvan expenses incurred from the beginning of the 2001-02 school year until October 12, 2001, when the child returned to respondentís 12:1+1 program.
The hearing officer rendered her decision on January 7, 2002. She held that respondent had not demonstrated that it had provided an appropriate educational program to the child during the period of time in question because the operative IEP for that time had not been prepared by a CSE with all of its required members. Her holding was premised upon the fact that the CSE that met on December 14, 1999 did not include the childís regular education teacher or her parents. The hearing officer did not address the fact that the December 14, 1999 IEP had been superseded by the May 10, 2000 IEP. However, since petitioner is not aggrieved by this portion of the hearing officerís determination, and respondent has not cross-appealed, the determination is final and not reviewed in this appeal. The hearing officer found that petitioner had met her burden of demonstrating that the services that she had obtained for her daughter at Sylvan were appropriate for the child during the 2000-01 school year. However, she concluded that the Sylvan program was too restrictive for the child in September and October 2001.
The hearing officer also held that equitable considerations did not support petitionerís claim for reimbursement for either school year. She found that the request for reimbursement for the 2000-01 school year was time-barred because petitioner did not request a hearing for the reimbursement until October 9, 2001, despite the fact that she was aware of her due process rights and related procedures in the event that she was not satisfied with a program. With respect to the months of September and October 2001, the hearing officer noted that petitioner had requested that the CSE defer its annual review until her child was evaluated. She found that the independent evaluations had not been delayed through any fault of respondentís, and that it would be inequitable to award tuition reimbursement to petitioner for September and October prior to the childís entrance into respondentís program on October 15, 2001.
The issue in this proceeding is whether petitioner is entitled to be reimbursed for the tuition expenses she incurred for the tutoring services which her child received at Sylvan from March 2001-August 2001 and from September 6, 2001 to October 13, 2001. 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 of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parentsí claim (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 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 School District Four, et al. v. Carter by Carter, 510 U.S. 7 ).
The board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (Matter of Handicapped Child, 22 Ed. Dept. Rep. 487; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Child with a Disability, Appeal No. 93-9). As noted above, the hearing officerís finding that respondent had not met its burden of proof is not reviewed in this appeal.
Petitioner has the burden of proof concerning the appropriateness of Sylvanís educational services for her daughter (Application of a Child with a Disability, Appeal No. 94-29, Application of a Child with a Disability, Appeal No. 95-57). She must show that the educational services provided by Sylvan addressed the childís special education needs and that her receipt of services in that facility was consistent with the requirement that she be educated in the least restrictive environment (20 U.S.C. ß1412[b]; Application of a Child with a Disability, No. 95-79). I do not review the hearing officerís determination that petitioner had met her burden with respect to the appropriateness of the childís placement at Sylvan during the 2000-2001 school year. However, her finding that petitioner failed to meet her burden of proof with respect to the service provided to her daughter by Sylvan from September 6, 2001 to October 13, 2001 will be reviewed.
No representative from Sylvan testified at the hearing. I have considered the documentary evidence which petitioner entered into the record. In a letter dated August 13, 2001, a Sylvan administrator indicated that petitionerís child would remain in the beginning reading program she had entered in March 2001, and she would work on skills such as phonics, reading vocabulary, word meaning and comprehension (Exhibit E). There is very little evidence in the record about the beginning reading program. A Sylvan report dated June 1, 2001 indicated that the child had difficulty with sight words. At Sylvan, she was being introduced to two new words per session, and previously introduced sight words were reviewed. A subsequent report dated August 3, 2001 indicated that she was continuing to work on her sight vocabulary. She was also working on her decoding skills and her reading comprehension skills, as well as her listening comprehension skills. Instruction with respect to each of these skills may be given in either regular education or special education. The record does not reveal what, if any, specialized techniques the Sylvan tutors may have employed. I note that the June and August reports assert in general terms that progress was being made, but they do not refer to any test results to support the claim of progress.
The record reveals that petitionerís child has significant deficits in her cognitive and language skills that have clearly affected her ability to learn the regular education curriculum. She requires primary special education instruction for academics. The tutoring she received at Sylvan was supplementary instruction designed to improve her ability to read. It was no substitute for the primary special education instruction in all academic subjects the child needed in September and October 2001. I cannot conclude on the limited record before me that the service provided by Sylvan in September and October 2001 met the childís special education needs. Accordingly, I find that petitioner has not met her burden of proof with respect to this issue, although I do so for reasons other than those upon which the hearing officer relied.
The final issue to be determined in this appeal is whether the hearing officer correctly determined that petitioner had not prevailed on the third criterion for reimbursement, i.e., whether equitable considerations did not support her claim for reimbursement for the spring of 2001 because she had failed to request an impartial hearing in a timely manner. There is no explicit statute of limitations for claims for reimbursement. A parent is not precluded, as a matter of law, from obtaining reimbursement for the cost of services which were provided prior to the date when the parent initiated due process proceedings (Northeast Central School District v. Sobol, 78 NY2d 598 ). Nevertheless, the timeliness of a parentís claim for reimbursement is one of the elements which may be considered in determining whether the parentís claim is supported by equitable considerations (Phillips v. Board of Educ., 949 F. Supp. 1108 [S.D. N.Y., 1987]; Application of the Board of Education of the City School District of the City of New York, Appeal No. 95-25).
Parents should promptly resort to due process procedures so that school authorities have an opportunity to correct mistakes or omissions in providing children with a free appropriate public education (Bernardsville Board of Education v. J.H., 42 F. 3d 149 [3d Cir. 1994]; Matter of Northeast Central School District v. Sobol, supra.). Petitioner, in effect, argues that she made known her dissatisfaction with her daughterís educational program during the 2000-01 school year. The hearing officer found that there was no credible evidence that petitioner had done so. The hearing officer concluded that while petitioner had sought to have her daughter transferred to a school in CSD 22 or to a private school, she did not specifically dispute the nature of her daughterís educational program. Petitioner challenges the hearing officerís conclusion.
The record indicates that petitioner sought another placement for her daughter in March 2001, although she does not appear to have objected to the child being in an inclusion program. However, the fact that petitioner may have expressed dissatisfaction with the placement at P.S. 298 by seeking a placement elsewhere is not dispositive of the issue. Mere notice of dissatisfaction does not put the Board of Education on reasonable notice that the parent will challenge a particular IEP in the future and seek reimbursement for services that she has obtained for the child in the interim (Bernardsville Board of Educ. v. J.H., 42 F. 3d 149, 158 [3d Cir. 1994]). Petitioner acknowledged at the hearing that she was aware of her right to request a hearing during the 2000-01, having participated in a hearing in 1999 (Transcript p. 31). Petitioner first requested an impartial hearing on July 2, 2001, but that hearing concerned what was to be recommended for the childís educational program for the 2001-02 school year (Exhibits 1, 2). That matter was settled by the parties. Petitionerís next request for a hearing was made on October 9, 2001, which was the basis for her present claim for reimbursement. Under the circumstances, I must agree with the hearing officer that petitionerís claim for reimbursement for services rendered during the 2000-01 school year is not supported by equitable considerations.
THE APPEAL IS DISMISSED.
Albany, New York
January 14, 2003
ROBERT G. BENTLEY