The State Education Department
State Review Officer

 

No. 04-028

 

 

 

 

 

 

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

 

 

Appearances:
Neal H. Rosenberg, Esq., attorney for petitioner

 

Hon. Michael A. Cardozo, Corporation Counsel, attorney for respondent, Joshua C. Chao, Esq., of counsel

 

DECISION

 

Petitioner appeals from an impartial hearing officer’s decision denying her request to be reimbursed for the cost of her son’s education at the Bay Ridge Preparatory School for the 2001-02 school year.  The appeal must be dismissed.

 

At the outset, I must address several procedural issues which require a discussion of the unusual history of this case.  This appeal concerns respondent’s determination that the student no longer needs special education services and the parent’s unilateral placement at Bay Ridge, a private preparatory school, for the 2001-02 school year.  On or about May 22, 2001, a Committee on Special Education (CSE) meeting was held at the respondent’s district 20 school (Parent Ex. A).  The parent was not present at this meeting, later testifying that she did not “remember” being invited to attend. (Tr. p. 64).  This CSE recommended that the student be declassified as a student eligible for special education services and that he be placed in general education at P.S. 1, located in Brooklyn, New York (Parent Ex. C).  

 

Petitioner received a copy of the individualized education program (IEP) developed pursuant to the May 2001 CSE meeting at some point during the summer of 2001 (Tr. p. 70).  Thereafter, she went to the Tilden High School, a public school located near her home, to explore a placement for her son for September; and sent a letter to the CSE, dated July 25, 2001, stating that the CSE recommendation “was not acceptable”, that her son needed to be placed in “a [s]pecial [e]ducation program” and requesting a “mediation meeting at which time my son’s needs can be further discussed” (Tr. pp. 70-73; Ex. E).  According to the petitioner, the respondent took no action after this letter, and petitioner likewise did not follow up on this letter request (Tr. p. 69). 

 

On September 10, 2001, petitioner’s attorney requested an impartial hearing in order to challenge the proposed IEP for the 2001-02 school year and to request tuition reimbursement (Parent Ex. D).  The parties offered no documentation of the two-year period that followed the initial hearing request.  According to the parties, they entered into “settlement negotiations” at some point after the request for the hearing was filed (Tr. pp. 6, 7, 8, 14).  At that time, the student’s file was still located within respondent’s district 20 (Tr. p. 8).  After these initial negotiations, according to respondent, there was a period of “inactivity” on the case, and the file was transferred to an out of state warehouse (Tr. pp. 7, 18).

 

On or about September 23, 2003, petitioner apparently made a request to “put [the case] back on the calendar”  (Tr. pp. 4, 6, 13, 14).  The hearing was characterized as a “re-opening” of the September 10, 2001 hearing request, which, according to petitioner’s attorney, was withdrawn “without prejudice” (Tr. pp. 6, 13).  There is no documentation of either the withdrawal or the written request of September 23, 2003. 

 

The hearing took place on April 2, 2004, a full two and one-half years after the initial hearing request.  As of the date of the hearing, respondent had attempted to retrieve the student’s file from the out of state warehouse but had not been able to locate it (Tr. p. 9).  The only documentation submitted by the parent at the time of the hearing consisted of the IEP for the 2001-02 school year, a Notice of Recommendation with respect to that year, a Notice of Recommendation for the 2000-2001 school year, the parent’s letter dated July 25, 2001, and the request for a hearing dated September 2001 (Parent Exs. A-E).

 

Petitioner filed this appeal with the Office of State Review in May 2004.  Respondent thereafter requested several adjournments, with petitioner’s consent, in order to continue attempts to locate the missing file.  In July 2004, respondent submitted an answer, along with the documents that had reportedly been missing at the time of the hearing, and asks that they be considered upon review.  These documents were presumably prepared in connection with the May 2001 CSE.  They include an educational evaluation, a classroom observation, a speech and language evaluation, progress reports from Bay Ridge dated February 2001, notices from respondent’s district 20 school to both the parent and the private school dated January 2001 regarding the need to reevaluate the student, and a notice from respondent’s district 20 school dated May 4, 2001 to the parent advising of the upcoming CSE meeting (Dist. Exs. A-G).  Petitioner has not objected to the submission of the documents.

 

Documentary evidence not presented at a hearing may be considered in an appeal from a hearing officer's decision if such evidence was unavailable at the time of the hearing or if such evidence is necessary to enable the State Review Officer to render a decision (Application of a Child with a Disability, Appeal No. 03-054; Application of the Bd. of Educ., Appeal No. 03-022; Application of a Child with a Disability, Appeal No. 02-098; Application of the Bd. of Educ., Appeal No. 02-024; Application of a Child with a Disability, Appeal No. 01-032).  I will consider the newly submitted evidence because the documents contain information about this student at the time period relevant to the hearing, and I find such information is necessary for me to render a decision given the paucity of the hearing record.  

 

            The purpose behind the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1487) is to ensure that children with disabilities have available to them a free appropriate public education (FAPE) (20 U.S.C. § 1400[d][1][A]).  A FAPE includes special education and related services provided in conformity with an individualized education program (IEP) required by the Act (20 U.S.C. § 1401[8]) and it is the IEP that tailors the required FAPE to the unique needs of the child (Bd. of Educ. v. Rowley, 458 U.S. 176, 181 [1982]).  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 (Sch. Comm. of Burlington v. Dep't. of Educ. of Mass, 471 U.S. 359 [1985]).

 

            At the commencement of this hearing, petitioner’s son was 16 years of age.  No evidence was presented at the hearing as to the student’s then current educational placement.  The record is also unclear as to when the student had first been classified as a student with a disability.  It is apparent, however, that the student was enrolled at Bay Ridge for at least the 2000-01 school year, having been classified as learning disabled (8 NYCRR 200.1[zz][6]) by respondent and recommended for a Modified Instructional Services I (MIS-I) class along with group speech and language therapy (Parent Ex. B).  At the May 2001 CSE, the student was declassified, and recommended for placement in general education with no special services (Parent Exs. A, C).  The parent unilaterally continued to place the student at Bay Ridge for the 2001-02 school year  (Parent Ex. A; Tr. pp. 28, 30, 40-43). 

 

Educational testing with respect to the May 22, 2001 CSE meeting was conducted in April 2001, when the student was 13 years of age.  As measured by the Woodcock-Johnson Psycho-Educational Battery Revised (WJ-R), the student scored in the high average range for tests of broad reading and in the average range for tests of broad mathematical skill  (Dist. Ex. A).  The student’s written expression was informally assessed to be age and grade appropriate.  The student reportedly demonstrated adequate decoding skills and the ability to use contextual cues, and possessed a good knowledge of basic sight words.  As for math skills, the student demonstrated the ability to apply basic operations and was able to solve multi-step word problems.  The evaluator noted that the student needed “constant feedback about his work” and took several breaks during testing (id.).  Nonetheless, the evaluator concluded that the student was performing at or above age and grade expectancy (id.).

 

The student was also observed in a gym class by an individual whose credentials are not indicated (Dist. Ex. B).  The observer apparently conversed with two of the student’s teachers, and reported that the student was mainstreamed in math and science classes and was performing well.   The observer also reported that the student followed the rules of play and that he was an active participant in class (id.).

 

The student was also evaluated by a speech and language therapist.  The assessment was based upon a parental interview, as well as an informal assessment of the student’s speech production, critical thinking abilities, synthesis of auditory signals and analytical thinking (Dist. Ex. C).  The evaluator indicated that the student was using the Megawords program in his reading curriculum, and that according to the student, he was placed with a group of students who “look up to him for help” during reading.   The student reportedly did not enjoy this, preferring to spend time with students who “motivated” him (id.).  The evaluator did not recommend speech and language therapy, but did recommend “that a guidance counselor be available to the student” (id.).

 

The student’s midterm report from Bay Ridge, compiled in or around February 2001, indicated that the student was “progressing steadily.”  (Dist. Ex. D).  The student was mainstreamed into regular education math and science classes, where he received additional support in the form of a second teacher, review classes and/or testing modifications.  He had reportedly adjusted well to the challenges of the mainstream classes and was meeting the class requirements.  The student reportedly performed well in science, earning test grades of 87, 92, 86 and 65.  He was said to be consistent with homework and lab reports.  He was also said to work “well in a group”, participating actively in group discussions.  The report indicated that the student was passing math, however, he was given extra time to complete math tests and, when needed, he was tested in a separate location and questions were read aloud to him. 

 

Regarding reading, the student was placed in an advanced decoding group for students who had mastered basic phonetic rules and patterns (Dist. Ex. D).  The report indicated that the student preformed well on reading assessments but that he required prompting to decode more challenging words.  The student demonstrated “adequate mastery of reading, spelling, and comprehending large groups of words that previously proved very difficult for him”.  Regarding oral reading, the report indicated that “although his reading rate is slower relative to the class … his comprehension of the material is higher relative to the group, as he deals well with abstractions and implied meanings within the text”.  The report indicated that the student was showing “a real determination in overcoming his reading difficulties.”  The student was performing well in language arts and social studies, although he had difficulty recalling specific terms and names.

 

A board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (M.S. ex rel. S.S. v. Bd. of Educ., 231 F.3d 96, 102 [2d Cir. 2000], cert. denied, 532 U.S. 942 [2001]; Walczak v. Bd. of Educ., 142 F.3d 119, 122 [2d Cir. 1998]; Application of a Child with a Disability, Appeal No. 02-028; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).  In order to meet its burden, a board of education must show (a) that it complied with the procedural requirements set forth in the IDEA and (b) that the IEP that its CSE developed for the student is reasonably calculated to confer educational benefits to the student (Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]; M.S., 231 F.3d at 102; Application of a Child with a Disability, Appeal No. 02-025).  

 

            Respondent bears the burden of establishing the appropriateness of the CSE's recommendation that a child not be classified as a child with a disability (Application of a Child Suspected of Having a Disability, Appeal No. 03-063; Application of a Child Suspected of Having a Disability, Appeal No.01-107; Application of a Child Suspected of Having a Disability, Appeal No. 00-001; Application of a Child with a Disability, Appeal No. 99-049; Application of a Child Suspected of Having a Disability, Appeal No. 94-36; Application of a Child Suspected of Having a Disability, Appeal No. 94-41; Application of a Child Suspected of Having a Disability, Appeal No. 94-42; Application of a Child Suspected of Having a Disability, Appeal No. 93-18).

 

            The IDEA requires a board of education to evaluate a child before determining that that child is no longer a child with a disability (20 U.S.C. § 1414[c][5]; 34 C.F.R.§ 300.534 [c][1]; 8 NYCRR 200.4[c][3]).  As part of a reevaluation, the CSE must review existing evaluation data on the child, including evaluations and information provided by the parents of the child, current classroom based assessments and observations, and teacher and related services providers observation (20 U.S.C. § 1414[c][1][A]; 34 C.F.R. § 300.533; 8 NYCRR 200.4[b][5]). On the basis of that review and input from the child’s parents, the CSE must identify what, if any, additional data are needed to determine whether the child continues to have such disability, the present levels of performance and educational needs of the child, and whether the child continues to need special education and related services (20 U.S.C. § 1414 [c][1][B]; 34 C.F.R. § 300.533[a][2]; 8 NYCRR 200.4[b][5]). If the CSE determines that no additional data are needed to determine whether the child continues to be a child with a disability, the board of education shall notify the child’s parents of that determination and the reasons for such determination. The CSE must also inform the parents of their right to request an assessment to determine whether the child continues to be a child with a disability  (20 U.S.C.§  1414 [c][4][ii]; 34 C.F.R. § 300.533[d]; 8 NYCRR 200.4[b][5][iv]).  Additionally, here, once the CSE determined that the student no longer needed special education services, it should have considered whether the student required any declassification support services (8 NYCRR 200.4 [d][1][iii]). 

 

            On the record before me, I cannot conclude that respondent demonstrated that the evaluative data that it did consider supported a determination that the student no longer needed special education.  This appeal contains anecdotal reports of this student’s success at Bay Ridge during the 2000-01 school year.  Indeed, the progress report indicates that the student was doing well in his mainstreamed classes as well as in his language arts class, in which he was grouped in the advanced decoding group  (Dist. Ex. D).  He was making progress, and reportedly wished to be challenged rather than looked up to in group settings (Dist. Ex. C).  At the same time, however, his success must be considered against the backdrop of additional staff support and testing modifications, and the need for continued assistance in some areas, such as oral reading, spelling, punctuation, algebra, graphing and recalling details (Dist. Ex. D).  The district’s evaluator confirmed that the student required constant feedback and breaks during testing  (Dist. Ex. A).  The district apparently relied heavily on standardized achievement test scores in its determination to declassify without addressing the significance of the noted academic weaknesses.  In addition, the district’s speech evaluation provides insufficient information to determine the student’s speech and language skills or to determine his then current level of functioning.  The evaluation does not address why the student was originally recommended for speech services and what if any progress had been made that would render the continuation of speech services unnecessary.  It may be that the student could have been appropriately placed in the general education environment with or without supports, however the district failed to demonstrate that it properly assessed the continued areas of weakness.  Based upon my review of the record, the evidence does not support a determination that the student no longer had a learning disability and did not need special education services.  The record does suggest that there was insufficient information to accurately assess the student’s then current needs and to make a determination that the student did not need special education.  In addition, there is no evidence in the record that any declassification support services were considered even though reports generated before the CSE meeting indicated the student had needs related to oral reading, spelling, punctuation, word problems, algebra, graphing, and recalling details (Dist. Ex. D).

 

Nor, however, has the petitioner met her burden of showing that the continued placement at Bay Ridge during 2001-02 was appropriate.  With respect to the second criterion for an award of tuition reimbursement, the student's parent bears the burden of proof with regard to the appropriateness of the services selected 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; Application of the Bd. of Educ., Appeal No. 94-34).  In order to meet that burden, the parent must show that the private school offered an educational program which met the student's special education needs (Burlington School Comm. v. Dept. 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).  While parents are not held as strictly to the standard of placement in the least restrictive environment (LRE) as school districts are, the restrictiveness of the parental placement may be considered in determining whether the parents are entitled to an award of tuition reimbursement (Rafferty v. Cranston Pub. Sch. Comm., 315 F.3d 21, 26-27 [1st Cir. 2002]; M.S. v. Bd. of Educ., 231 F.3d 96 [2d Cir. 2000]).

 

Petitioner offered the testimony by telephone of the headmaster of Bay Ridge Preparatory, who is also a psychologist.  The headmaster opined that the student continued to need special education services, however, the basis of his opinion and the extent to which such services were needed was unclear.  Indeed, the headmaster was often uncertain and/or lacked memory as to which school year he was referencing when testifying about the student’s limitations, class placement and progress (Tr. pp. 30, 35, 37, 39, 40, 42, 43, 46-48, 50, 54).  No report cards or records from Bay Ridge Preparatory were submitted into evidence or referenced at any time by petitioner, though the student’s file was readily available (Tr. p. 43). 

 

The record lacks sufficient information regarding the services provided during the 2001-02 school year to demonstrate that the program met the student’s special education needs at that time.  I therefore find that petitioner has not met her burden of proof as to the appropriateness of the placement at Bay Ridge Preparatory for the 2001-02 school year (Application of a Child with a Disability, Appeal No. 04-008; Application of a Child with a Disability, Appeal No. 03-025; Application of the Bd. of Educ., Appeal No. 01-014; Application of a Child with a Disability, Appeal No. 98-70).

 

As I find that petitioner has not met her burden of proof as to the appropriateness of the student’s placement at Bay Ridge Preparatory for the 2001-02 school year, I need not address equitable considerations in this regard (Application of the Bd. of Educ., Appeal No. 01-014). 

 

I further find petitioner’s remaining contentions to be without merit. 

 

 

            THE APPEAL IS DISMISSED.

 

 

 

 

 

Dated:

Albany, New York

 

__________________________

 

August 13, 2004

 

PAUL F. KELLY

STATE REVIEW OFFICER