The State Education Department
State Review Officer
Application of the BOARD OF EDUCATION OF THE WAPPINGERS CENTRAL SCHOOL DISTRICT for review of a determination of a hearing officer relating to the provision of educational services to a child with a disability
Raymond G. Kuntz, P.C., attorney for petitioner, Wendy K. Brandenburg, Esq., of counsel
Family Advocates, Inc., attorney for respondents, RosaLee Charpentier, Esq., of counsel
Petitioner, the Board of Education of the Wappingers Central School District, appeals from an impartial hearing officer’s decision awarding respondents reimbursement for the cost of their daughter’s tuition at the Randolph School (Randolph) for the 2001-02 school year. The appeal must be dismissed.
Respondents’ daughter was seven years old and had just entered the second grade at Randolph when the hearing began on September 25, 2001. She has been diagnosed as having an attention deficit disorder (ADD) as well as Fragile X syndrome, a chromosomal defect with autistic features which affects her ability to filter sensory input, resulting in overstimulation (Exhibits 8, 9). She also has been diagnosed as having Landau Kleffner syndrome, which is determined through the presence of abnormal electrical activity in the brain and which places her at risk for seizures. As a result of this seizure risk, she is not a candidate for stimulant medication to address her ADD (Transcript p. 315). The child has been classified as other health impaired. Her classification is not in dispute.
The child entered kindergarten in the 1999-2000 school year, while residing in the Hyde Park Central School District. That district’s Committee on Special Education (CSE) recommended a collaborative special education/regular education class, speech language therapy, occupational therapy (OT), and counseling for the child (Exhibit 10). However, her parents enrolled her at Randolph, which has not been approved by the State Education Department to provide instruction to children with disabilities, and they requested a due process hearing. The matter was resolved when Hyde Park agreed to pay a portion of the child’s tuition and to provide speech therapy and OT (Transcript p. 359). Respondents moved to petitioner’s district on or about March 15, 2000 (Exhibit 14). A speech/language evaluation recommended that therapy be discontinued, but petitioner’s staff provided OT as a related service for the balance of the school year, pursuant to Hyde Park’s individualized education program (IEP) (Exhibit 18; Transcript pp. 458-59).
In April 2000, a private educational evaluator reported that the child had normal intelligence, with strengths in language skills, but weaknesses in perceptual, fine motor and math skills. The child achieved a verbal IQ score of 112, a performance IQ score of 86, and a full scale IQ score of and 99 on the Wechsler Preschool and Primary Scale of Intelligence. The testing confirmed that the child was hypersensitive to stimuli, and had attention deficits and social anxiety. Due to the child’s excellent reading skills, the educational evaluator recommended that she be placed in a group of normal peers with individualized attention. The evaluator opined that the child would not do well in an inclusion class (Exhibit 26).
Petitioner’s CSE met in June and July 2000 to develop the child’s IEP for first grade during the 2000-01 school year (Exhibit 34). It recommended that she remain classified as OHI, and that she be placed in a 12:1+1 inclusion class, and receive 30 minutes of OT twice a week, and a counseling consult once a month (Exhibits 33, 35). Respondents rejected the IEP, and kept their daughter in Randolph. They also requested an impartial hearing, which was settled by petitioner paying for the child’s tuition for that year (Transcript p. 439). The child’s progress report at the end of first grade at Randolph was very positive, but mentioned continued weaknesses with focus and interaction with her peers (Exhibit A).
On May 22, 2001, petitioner’s CSE convened to develop an IEP for the 2001-02 school year. The CSE recommended the child be placed in an inclusion or integrated class of 22 students, five or six of whom would be classified, in petitioner’s Evans Elementary School (Exhibit 40). The class would be taught by a full time regular education teacher, a full time special education teacher and a full time teaching assistant (Transcript p. 83). The CSE chairman testified that math and reading would be taught in smaller groups in pull out rooms, although this was not indicated on the IEP (Transcript pp. 97-98). The IEP also provided for a full time 1:1 aide for the child in order to keep her on task and focused (Transcript pp. 83-84). In addition, she would receive one individual and one group OT session per week (Exhibit 40).
On August 14, 2001, respondents expressed their disagreement with the 2001-02 IEP to the CSE chairperson, claiming that environmental factors at petitioner’s school, such as class size, noise, and the restrictions presented by a 1:1 aide, were not as favorable as those at Randolph. They requested an impartial hearing and tuition reimbursement (Exhibit IHO 1). The hearing began on September 25, 2001 and concluded on November 6, 2001.
In his decision dated January 25, 2002, the hearing officer found that the child needed a small, quiet environment to benefit from instruction, and he ruled that her 2001-02 IEP did not adequately provide for meeting that need. He noted that petitioner’s CSE had not investigated how the child might react in a class of 22 students, and had not established that she could function in the recommended class. He concluded that it would be inappropriate to suddenly transfer her to a larger environment, and recommended that the CSE include in her next year’s IEP specific provisions designed to enable her to learn and progress in a larger environment. He further concluded that Randolph’s services to the child were appropriate, and that equitable considerations favored tuition reimbursement. Petitioner appeals from each part of the hearing officer’s decision.
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 parent’s claim (Burlington Sch. Comm. v. Dep’t of Educ., 471 U.S. 359 ). 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 ). 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 the 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. § 300.550[b]; 8 NYCRR 200.6[a]).
I find that the child’s 2001-02 IEP does not accurately reflect the results of her evaluations. It contains no reference to the child’s neurological evaluations or the reports of the geneticist. Indeed, it does not mention that she has Fragile X syndrome or describe its manifestations, but simply indicates that she has "good general health." Nor does the IEP adequately identify the child’s current level of social functioning. It indicates that social pragmatics are a parental concern, but does not identify her social skills as an educational need, and there are no annual goals or short-term instructional objectives related to her social skills. In its description of the child’s management needs, the IEP indicates that she needs to be redirected because of her attention difficulties and that she needs to recognize social cues, but the IEP does not reveal how these needs would be addressed. The CSE failed to indicate on the IEP either the student: teacher ratio or the class size it had recommended. Although the IEP indicates that an individual aide would be assigned to the child, there is no explanation of how the aide would help the child.
The crux of this dispute is whether the child would have been able to benefit from instruction in the inclusion class of 22 pupils, three instructors and her own aide. There was conflicting testimony as to the appropriateness of the class. Her designated special education teacher opined that, based on what she had seen in the child’s file and IEP, the child would have been appropriately placed in her classroom (Transcript pp. 203-04). The school psychologist, who observed the child at Randolph, testified that the child could handle the inclusion class academically, socially and behaviorally (Transcript pp. 231-32, 237).
The child’s teacher at Randolph for the first and second grades testified that it would be difficult for the child to function in a classroom with 22 students (Transcript p. 274). In her opinion, the child needed "a very small family-like situation where she feels comfortable enough to ask questions and …she knows everybody and she feels safe" (Transcript p. 273). The child’s geneticist testified that children with Fragile X syndrome should have an educational setting that minimizes sensory output and enables attention to detail (Transcript p. 336). He further testified that small class size was imperative for her (Transcript p. 366). He opined that respondents’ daughter would not do well in a regular education setting with a large number of children and adults in the same room (Transcript p. 368).
While it is possible the child might have been able to benefit from education in a setting larger than Randolph, there is nothing in her IEP to address how it would be accomplished. There is no evidence that a plan was in place to allow for her gradual integration into a larger school setting. The CSE did not recommend counseling to assist the child with a transition into a larger classroom, and there were no counseling or social-emotional goals to address the anxiety and disorientation she would be expected to experience in a larger social setting. On the record before me, I must agree with the hearing officer that petitioner has failed to meet its burden of proving that it had offered to provide an appropriate educational program to respondents’ daughter for the 2001-02 school year.
A student’s parents bear the burden of proof with regard to the appropriateness of the services they obtained for their child (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, respondents must show that the private school offered an educational program that met their daughter’s special education needs (Burlington, 471 U.S. at 370; 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 co-administrator and master teacher of Randolph described the school’s educational program at the hearing. She testified that the school is for grades nursery through eighth grade and provides an enriched New York State curriculum. The school had a total of 62 students, with approximately 23 students in the elementary school (Transcript p. 259). The witness testified that respondents’ daughter was in a group of six first graders and six second graders, and that she was the only classified student in her class. The class was taught by a teacher, an assistant and an aide (Transcript pp. 265-66, 305). The class was often broken down into smaller groups (Transcript p. 297). The child was at the top of her reading group, performed at a high level in language arts, and her writing had improved from first grade to second grade (Exhibit A; Transcript p. 269). Randolph does not administer any standardized testing in first or second grade. However, testing by petitioner’s school psychologist indicated that the child was performing at or near grade level academically.
The child’s teacher described the child as thriving in her class at Randolph, but noted that she had difficulty with larger groups of children (Transcript pp. 307, 310). Petitioner’s school psychologist, who observed the child on three different occasions at Randolph, also testified that she had improved in her social skills and attending ability in the year between his observations (Transcript pp. 226, 245). His most recent observation of the child in second grade revealed that she was interacting more appropriately with the children and teachers than in the prior year (Transcript p. 226).
I find that Randolph’s highly structured program, with its small group instruction, and limited situations for sensory overload, was consistent with the recommendations of medical experts and her teachers regarding her difficulties in large groups. I agree with the hearing officer that the child’s primary need is for an environment sufficiently free of distraction to enable her to benefit from instruction, and that Randolph addressed that need. Therefore, I find that respondents have met their burden of proof with regard to the appropriateness of the private school’s services for their daughter.
I find no evidence that the parents failed to cooperate with the CSE, and conclude that equitable considerations support their claim for reimbursement.
THE APPEAL IS DISMISSED.
Albany, New York
November 8, 2002