The State Education Department
State Review Officer

No. 04-079

 

 

 

 

 

Application of the BOARD OF EDUCATION OF THE BAY SHORE UNION FREE SCHOOL DISTRICT, for review of a determination of a hearing officer relating to the provision of educational services to a child with a disability

 

 

Appearances:
Ingerman Smith, L.L.P., attorney for petitioner, Christopher Venator, Esq., of counsel

 

Bee Ready Fishbein Hatter & Donovan LLP, attorney for respondent, Kenneth A. Gray, Esq., of counsel

 

 

DECISION

 

Petitioner, the Board of Education of the Bay Shore Union Free School District (district), appeals from the decision of an impartial hearing officer that the individual aide recommended by its Committee on Special Education (CSE) for respondent's son for the 2004-05 school year be provided at the private school the child attends. The appeal must be dismissed.

 

At the time of the hearing in August 2004, the child was seven years old and about to enter second grade at St. Patrick School (St. Patrick), a nonpublic school. There is no dispute that the child is eligible for a program of special education (Education Law 4401) as a student with an other health impairment (8 NYCRR 200.1[zz][10]). There is agreement that the provision of an individual aide for the student is appropriate to meet his individual special education needs (Dist. Ex. 11 at p. 1; Pet 8; Answer 3; Tr. p. 37). The dispute herein involves the site where the individual aide service is to be provided (Tr. pp. 37-39).

 

A determination of the site where the individual aide should be provided requires consideration of the nature of the service and the child's individual needs (Application of the Bd. of Educ., Appeal No. 02-090). The child has attended St. Patrick, a private parochial school, from preschool through first grade (Dist. Ex. 1). In November 2003 the child's first grade teacher referred him to the CSE citing concerns with the child's ability to follow directions and keep pace with classroom instruction (Dist. Ex. 1). A psychiatric evaluation performed in January 2004 revealed that the child had "some measure of conduction hearing loss" based on a history of serious otitis media (Dist. Ex. 5). During the evaluation the examiner noted that the child was slightly fidgety and tended to "drift away if not directly engaged" (Dist Ex. 5). Mild neurological "soft" signs were also reported. The psychiatrist opined that the child's difficulty following directions and processing instructions appeared to be related to inattentiveness rather than a hearing disorder, although she noted the child "may have signs of both."  She diagnosed the child with an attention deficit hyperactivity disorder (ADHD), primarily inattentive type, mild severity and recommended that additional testing take place to rule out a learning disability and language processing deficits. The psychiatrist also recommended that the child be identified as having a conduction hearing loss and "mild to moderate deficits in attention and concentration" (Dist. Ex. 5).

 

Around this same time a psychoeducational evaluation of the child was conducted (Dist. Ex. 3). Administration of the Wechsler Intelligence Scale for Children-Third Edition (WISC-III) yielded a full scale IQ score of 115 (SS), which placed the child in the "high average" range of intellectual ability. However, the examiner noted a significant discrepancy between the child's verbal IQ score (SS 123) and performance IQ score (SS 104) and suggested the student was better able to demonstrate his intelligence verbally than nonverbally. As measured by the Woodcock Johnson III (WJ-III), the student's academic skills ranged from "average" to "superior" and were commensurate with his intellectual ability (Tr. pp. 18, 19).

 

The CSE met on February 13, 2004 and recommended additional testing in the form of a central auditory processing evaluation (CAPE) (Dist. Ex. 6). The student's needs were again reviewed at a CSE subcommittee meeting on April 1, 2004, however, the results of the CAPE were not yet available (Dist. Ex. 7). Meeting minutes revealed that the child was performing at grade level in reading and math but that he "demand[ed] a lot of attention," was unable to work independently without supervision and refocusing, and needed "1:1 assistance to complete assignments" (id.). Due to disagreement among committee members concerning the provision of the services of an individual aide, the meeting was tabled until the results of the CAPE became available for review and a full CSE could convene (Tr. p. 26).

 

An audiological evaluation was conducted in March and April 2004 (Dist. Ex. 8). The results of audiometric testing suggested a mild to moderate conductive hearing loss bilaterally, which precluded an auditory processing assessment. The evaluator concluded "auditory perceptual skill difficulties, in our opinion, including attention, following directions and difficulties hearing are a result of hearing impairment secondary to chronic otitis media. Post otitis auditory dysfunction, which results from a long history of chronic otitis media and presents similar to an auditory processing disorder, is probable" (Dist. Ex. 8). The evaluator recommended that the child be considered for "special educational classification" in order to obtain classroom accommodations including the use of an FM system and visual cues in academic settings (id.). Following this evaluation the child had tubes placed in both ears (Tr. pp. 28, 43; Dist. Ex. 9).

 

The CSE reconvened on May 26, 2004 and recommended a speech-language evaluation of the child (Dist. Ex. 9). Two days later a speech-language pathologist conducted such an evaluation. The child's receptive and expressive language skills were judged to be above average as measured by the Clinical Evaluation of Language Fundamentals-Third Edition (CELF-3) and the Test for Auditory Comprehension of Language-Third Edition (TALC-3). The evaluator reported that based on her assessment the child did not "demonstrate difficulty with understanding or using language appropriately" (Dist. Ex. 10).

 

On June 3, 2004 the CSE met again and classified the child as having an other health impairment based on the psychiatrist's ADHD diagnosis and teacher reports of focusing difficulties (Dist. Ex. 11; Tr. pp. 34-35). The CSE Chairperson testified that the committee "had enough to feel that focusing was an issue for him in learning." The CSE recommended that the child attend resource room daily for 40 minutes. The committee's rationale for resource room services was to help with "organizational skills and compensatory strategies for focusing" and to assist with work missed as a result of "focusing issues." At the end of each school day, the individualized education program (IEP) provided that the child would be bused from St. Patrick to the public school where he would receive such services.

 

The CSE also concluded that the student needed an individual aide for academic course work (Tr. p. 36). The Chairperson testified that the individual aide was for "refocusing, to keep him on task so that during a lesson if he started to drift off there would be an individual next to him to get him back to what the class was doing and what the teacher directives were" (Tr. pp. 35-36). The Chairperson also testified that it was the CSE's practice to not provide resource room or related services at St. Patrick's because of the school's proximity to the public school (Tr. p. 38). The CSE recommended that he be provided with an individual aide for three hours daily during academic classes at the public school the child was not attending (Dist. Ex. 11 at p. 1). Petitioner maintained that the individual aide would be provided only if the child attended the public school and that it was not willing to provide the service at the private school or bus the child from the private school to the public school to receive the service (Tr. pp. 60-61). The parents disagreed, asserting that the aide should be provided to the child at the school he was attending (Tr. p. 37). There were no other disagreements between the parties. After attempts at mediation failed, on July 2, 2004 the parents requested an impartial hearing (Dist. Ex. 12). The hearing was held on August 9, 2004.

 

The impartial hearing officer issued his decision on September 3, 2004. He found that an individual aide would keep the child focused on instruction during academic classes, that the aide was necessary to assist the child in learning, and that the aide had been determined to be an appropriate classroom service by the CSE (IHO Decision, pp. 8-9). He further determined that "if the student would be deprived of the 1:1 aide, he would clearly have his services disrupted and his learning experience adversely impacted" and concluded that failure to provide an individual aide at St. Patrick would deny the child a free appropriate public education (FAPE).

 

On appeal petitioner asserts that there is no obligation under either federal or state law for petitioner to provide the services of a "one-on-one" aide to a student attending a private school.

 

A board of education must offer to provide a FAPE to each student with a disability residing in the school district who requires special education services or programs (20 U.S.C. 1412[a][1][A]; N.Y. Educ. Law 4402[2][a],[b][2]). Such services are to be provided in a manner which enables children with disabilities to participate in regular education services to the maximum extent appropriate (N.Y. Educ. Law 4402[2][a]). A board of education's alleged failure to offer a FAPE may be challenged in a proceeding brought pursuant to the due process provisions of the Individuals with Disabilities Education Act (IDEA) and Article 89 (20 U.S.C. 1415[f][1]; N.Y. Educ. Law 4404[1]). A child with a disability is defined as "a person under the age of twenty-one who is entitled to attend public schools pursuant to section thirty-two hundred two of [the Education Law] and who, because of mental, physical or emotional reasons can only receive appropriate educational opportunities from a program of special education" (N.Y. Educ. Law 4401[1]).

 

Additionally, section 3602-c of the Education Law requires the provision of special education services to children with disabilities who are enrolled by their parents in nonpublic schools provided that a request for such services is filed with the board of education on or before the first day of June preceding the school year for which the request is made (N.Y. Educ. Law 3602-c[2]). The timeliness of respondent's request for services in the instant case is not in dispute.

 

Although boards of education are required by the IDEA to provide some special education services to some children enrolled privately by their parents in nonpublic schools, no such children are individually entitled under the IDEA to any or all of the services they would receive if enrolled in a public school. The IDEA also authorizes the delivery of whatever special education services are to be provided to such children "on the premises of private, including parochial, schools, to the extent consistent with law" (20 U.S.C. 1412[a][10][A][i][II]).

 

In contrast to the IDEA, New York State law does confer an individual entitlement to special education services and programs to eligible students enrolled by their parents in nonpublic schools. Education for students with disabilities means special education programs "designed to serve" students with disabilities (N.Y. Educ. Law 3602-c[1][d]). Subdivision 2 of section 3602-c of the Education Law requires boards of education, upon timely request by parents, to furnish appropriate special education programs to students with disabilities privately placed by their parents in nonpublic schools. While subdivision 9 of that section provides that such students "shall receive such services in regular classes of the public school and shall not be provided such services separately from pupils regularly attending the public schools," the New York State Court of Appeals has held that:

 

"[t]he statute does not limit the right and responsibility of educational authorities in the first instance to make placements appropriate to the educational needs of each child, whether the child attends public or private school. Such placements may well be in regular public school classes and programs, in the interests of mainstreaming or otherwise [citation omitted], but that is not a matter of statutory compulsion under section 3602-c." (Bd. of Educ. v. Wieder, 72 N.Y. 2d 174, 184 [1988]).

 

In Wieder, the court further stated "[t]he paramount principle that guides State law is concern for a handicapped child's educational needs, whether in public or private school" and that such children "are to be afforded suitable educational opportunities according to their individual needs" (id. at 186). Moreover, the court concluded that school districts were not compelled to provided services exclusively at public or private school placements, and that "such a compulsion would be inconsistent with the regulatory scheme, which contemplates that the placement of children in programs will be guided generally by their individual educational needs" (id. at 187-88).  Section 3602-c of the Education Law does not mandate the location where services are to be provided to a student, but a contention that such services can not be provided at a parochial school is not supportable in light of Wieder, 72 N.Y. 2d 174 (1988).

 

          Having determined that dual enrollment services can be provided to children with disabilities "according to their individual needs, either in the regular classes of the public schools or elsewhere, including at the nonpublic school the student attends", it is necessary to determine where the services required by respondent's son are to be provided. As noted above, there appears to be no dispute that the CSE appropriately recommended, as an IEP service, that the student have an individual aide during academic classes. Respondent will not provide the service at the private school the student is attending, however, it will provide this service at the public school (Tr. pp. 51, 55).1

 

There is nothing in the record to suggest that the individual aide service could be offered at a separate location from the child's academic classes and meet his individual needs. The record demonstrates the opposite; in order to meet the child's needs, the service must be provided to the child in the classroom while instruction is taking place.  Because of the nature of the service, and the child's educational needs, the service is not severable from the student's participation in the classroom.  The purpose of the individual aide service for this child is to meet his management needs as identified on his IEP (Dist. Ex. 11 at p. 3) and to allow him to benefit from instruction by providing supervision in the classroom because he is unable to work independently without supervision and needs refocusing and "1:1 assistance to complete assignments" (Dist. Ex. 7). In order to provide such service effectively and appropriately, to meet the individual needs of this child, the record makes clear that it is necessary to provide it in the student's classroom. Special education programs and services must be tailored to meet a student's individual needs and aligned to address those needs (Application of the Bd. of Educ., Appeal No. 04-032). By failing to align the individual aide service to meet this student's needs, petitioner has denied the student a FAPE. Given that this child is eligible for dual enrollment services, the individual aide service is to be delivered at the nonpublic school that he is currently attending for the 2004-05 school year (see Application of the Bd. of Educ., Appeal No. 02-024; Application of the Bd. of Educ., Appeal No. 02-090; Application of the Bd. of Educ., Appeal No. 03-059).

 

I have considered petitioner's contention that an individual aide is not an instructional service therefore cannot be provided pursuant to section 3602-c. I find this argument unpersuasive. As a dually enrolled student, this student is entitled to special education programs as defined in Education Law 4401 (3602-c[1][d]). Education Law 4401 (1) defines "special education" as specially designed instruction which includes special services or programs, and transportation, provided at no cost to the parents to meet the unique needs of a child with a disability. "Special education services or programs" are defined broadly and encompass "related services" which include "other support services" to be furnished in appropriate cases to students with disabilities (Education Law 4401 [2][k]). I find that the individual aide service, as identified on the student's IEP as appropriate to meet the student's needs, to be a support service which falls within the category of related services as that term is broadly defined by Education Law 4401, and is therefore a permissible service, when appropriate, under section 3602-c.2

 

 

THE APPEAL IS DISMISSED.

 

 

 

 

Dated:

Albany, New York

 

__________________________

 

November 22, 2004

 

PAUL F. KELLY

STATE REVIEW OFFICER

 

 

1 Apparently petitioner will provide related services to special education students in private school buildings if travel to the service at a public school is too far and the service is a "typical related service such as PT [physical therapy], speech therapy"(Tr. pp. 46-47). However, it is the district's policy not to provide any student at a private school an individual aide (Tr. p. 50).

 

2 Having concluded under these circumstances that the individual aide is an appropriate related service as that term is statutorily defined, I need not determine whether the service is a related service (8 NYCRR 200.1[qq]) or supplementary aid and service (8 NYCRR 200.1 [bbb]) as those terms are defined by regulation.