The State Education Department
State Review Officer

No. 05-008



Application of a CHILD WITH A DISABILITY, by his parents, for review of a determination of a hearing officer relating to the provision of educational services by the New York City Department of Education


Office of George Zelma, attorney for petitioners, David Berlin, Esq., of counsel

Hon. Michael A. Cardozo, Corporation Counsel, attorney for respondent, Janice Casey Silverberg, Esq., of counsel


††††††††††† Petitioners appeal from the decision of an impartial hearing officer which denied their request to be reimbursed for their sonís full tuition costs at the York Preparatory School (York Prep) for the 2004-05 school year.Respondent, the Department of Education of the City of New York, cross-appeals from the decision of the impartial hearing officer which awarded petitioners reimbursement for the portion of their sonís tuition costs for the supplemental Jump Start (Jump Start) program at York Prep for the 2004-05 school year.The appeal must be dismissed.The cross-appeal must also be dismissed.

At the time of the hearing, the student was 14 years old and attending ninth grade at York Prep.York Prep is a private college preparatory day school that provides a general education curriculum for grades six through 12 (Parent Ex. E at p. 1).York Prep has not been approved by the Commissioner of Education as a school with whichdistricts may contract to instruct students with disabilities. (Parent Ex. A at p. 1). In addition to attending York Prep, the student was enrolled in York Prepís Jump Start program (Tr. p. 19). Jump Start is a supplemental program for students requiring additional help due to different learning styles or learning disabilities that offers 1:1 tutorials to the students. In addition, the program offers morning meetings and afternoon study halls where Jump Start teachers are available to assist students with school assignments (Tr. p. 19; Parent Ex. D at pp 1, 2). The studentís eligibility for special education as a student with an other health-impairment (OHI) is not in dispute (Parent Ex. B at p. 1; see 8 NYCRR 200.1[zz][10]).

The record does not indicate when the student was initially referred to respondentís Committee on Special Education (CSE) or when he was first determined eligible for special education.The record does reveal that the student has had a history of academic difficulties beginning in early elementary school (Tr. pp. 49, 52, 64-67).During this time, petitioners supplemented the studentís public school education with private tutoring (Tr. p. 50).The student has been attending York Prep since the sixth grade and has been enrolled in Jump Start since either the sixth or seventh grade according to the hearing testimony of York Prepís Director of Learning and Psychological Services (Tr. pp. 18-19, 33).

††††††††††† The record contains limited evaluative information. The hearing record does not contain any formalized assessment or standardized testing of the student except for a written update report by the studentís private psychiatrist dated June 10, 2004 (Parent Ex. C).The private psychiatrist identifies diagnoses of attention deficit hyperactivity disorder (ADHD), a disorder of written expression, a reading disorder and a mixed receptive expressive language disorder (id.).Petitioners report that the student has been diagnosed as having an attention deficit hyperactivity disorder (ADHD), dyslexia and other processing problems (Tr. pp. 37, 63, 68).The student is also reported to have difficulty with reading comprehension, written expression and following directions (Tr. pp. 20-22, 46, 48; Parent Ex. B).He is easily distracted and requires refocusing especially toward the end of the school day (Tr. p. 60; Parent Ex. C at p. 1).The June 11, 2004 IEP indicates that his effort fluctuates (Parent Ex. B at p. 3).The IEP and psychiatric update also indicate that the student experiences anxiety related to learning difficulties (Parent Exs. B at p. 4; C at p. 2). The psychiatric update also indicates that the student demonstrates fine motor and graphomotor weaknesses (Parent Ex. B at p. 6).The record reflects that the student has been prescribed medication to address symptoms of distractibility and impulsivity (Tr. pp. 60, 72; Parent Ex. C at p 2) and that he does not exhibit any behavior problems (Tr. p. 39).

††††††††††† According to the psychiatristís report, the student was frustrated in public school because the number of students in the class made it difficult for him to pay attention, he couldnít keep up with the work, and he did not believe he was getting the help he needed (Parent Ex. C at p. 1).The psychiatrist noted that the student became distracted when he was not able to understand subject material and anxious and frustrated when schoolwork was too difficult (Parent Ex. C at p. 2).The studentís academic functioning and emotional state reportedly improved when he began attending York Prep although the student continued to have difficulty with reading comprehension, written expression, focusing toward the end of the school day, and completing daily homework (Parent Ex. at pp. 1, 2).The psychiatrist recommended an educational program which would include a school setting with students of at least average intelligence and without significant behavior problems (Parent Ex. C at p. 2). This could include students with learning/language disorders and attention problems (id.).He also recommended a small, highly structured class with a high staff to child ratio; a quiet learning environment; staff specially trained to work with children with learning and language disorders and with problems with inattention, impulsivity and anxiety (id.).The recommendations also included individual attention throughout the day to address the studentís learning, language, concentration, and anxiety deficits; instructions broken down into small steps; an ongoing behavior management program within the classroom to assist with on task behavior; and minimal pull outs from class (Parent Ex. C at p.3).He concluded that York Prep satisfied the requirements of an appropriate educational setting (id.).He stated that the student requires 1:1 assistance with reading, writing, and refocusing, and intensive supervision with homework and organizing long-term projects (id.).The psychiatrist determined that without the small class size and level of services provided by York the student would regress significantly, become impulsive and inattentive, develop low self-esteem, become frustrated and withdrawn, and be at high risk for developing serious psychiatric problems (id.).He reported that transitioning to another school, even one with an adequate program, would be detrimental to the student (Parent Ex. C at p. 4).

††††††††††† On June 11, 2004, respondent convened a CSE to develop an individualized education program (IEP) for the student for the 2004-05 school year (Parent Ex. B).The IEP indicated that the student had difficulty with comprehension and writing (Parent Ex. B at p. 3).The studentís decoding, reading comprehension, listening comprehension and writing skills were at a 7.8 grade equivalent (id.).Math was identified as an area of strength for the student and his math computation and problem solving skills were reportedly at a 9.0 grade equivalent (id.).Although the student was reportedly tested annually by respondent (Tr. p. 73) and biannually by York Prep (Tr. p. 41), the record does not reflect how the scores listed on the student's IEP were obtained or who conducted the tests.The IEP indicated that fluctuations in the studentís effort impacted his academic performance and that at times the studentís anxiety manifested itself as reluctance or opposition to complete homework or school related tasks (Parent Ex. B at p. 4).The IEP also indicated that the student demonstrated difficulty with fine motor and graphomotor skills but that no environmental modifications or adaptive equipment was needed (Parent Ex. B at p. 6).

††††††††††† The CSE recommended that the student participate in general education with special education teacher support services (SETSS) (Parent Ex. B at pp. 1, 7).The SETSS would consist of five periods of direct instruction outside the classroom with three periods of direct instruction focusing on language arts including comprehension and written language skills (id.).The ratio for direct instruction was 8:1 and services were to be provided in a separate location (id.).In addition, one period per week of indirect services would be used for consultation between the general education and special education teacher (id.).The CSE also recommended counseling one time per week in a group of three and individual occupational therapy two times per week (Parent Ex. B at pp. 13, 14).The IEP included goals and objectives related to writing a report, proofreading and editing, gaining meaning from reading material, predicting outcomes of stories, applying organizational techniques to manage time, improving fine motor and graphomotor skills, and improving academic performance (Parent Ex. B at pp. 8-12).Modifications included double time for testing, grouping of 8:1 for testing, directions read and reread, and questions read aloud to student (Parent Ex. B at p. 14).

††††††††††† By letter dated September 28, 2004, petitioners requested an impartial hearing seeking tuition reimbursement for York Prep for the 2004-05 school year and alleging that the June 11, 2004 IEP was not supported by substantial evidence, was not reasonably calculated to confer educational benefit to the student and that the CSE was not duly constituted (Parent Ex. A at p. 2).Petitioners also asserted that the York Prep school program is appropriate for the student and that the parent cooperated with the CSE (id.).The impartial hearing was conducted on November 5, 2004 (IHO Decision, p. 2).Respondent did not offer any evidence or call any witnesses to support its offered program (Tr. p. 10).

††††††††††† The impartial hearing officer rendered his decision on December 7, 2004 and found that the CSE of June 11, 2004 was improperly composed because the regular education teacher who was present at the CSE had no knowledge of the student and did not teach at an education level that would enable him to be familiar with the general education portion of the program or how such instruction should be provided (IHO Decision, p. 9). The impartial hearing officer concluded that the resulting IEP did not demonstrate that respondent met its burden of offering a free appropriate public education (FAPE) (id.). The impartial hearing officer further found that Jump Start could be identified as a separate program within York Prep, with specific hours set aside for its services and with a separate billing mechanism (IHO Decision, pp. 10-11; Parent Ex. G).The impartial hearing officer also found no basis in the record for reimbursing petitioners for the general education portion of the program that York Prep provided the student other than the benefit of its small classes which he characterized as "fortuitous", and therefore awarded petitioners reimbursement only for the cost of Jump Start for the 2004-05 school year (IHO Decision, p. 11).

††††††††††† On appeal, petitioners claim that the impartial hearing officer erred in awarding reimbursement only for Jump Start and request that the impartial hearing officerís decision be reversed.Petitioners ask to be awarded reimbursement for the full cost of tuition for both the general education component of York Prep and Jump Start for the 2004-05 school year.In its answer and cross-appeal, respondent claims that petitioners are not entitled to reimbursement for the general education program at York Prep; that petitioners failed to demonstrate the appropriateness of special education services at Jump Start; and that equitable considerations favor a denial of any reimbursement to petitioners.Respondent requests that the portion of the impartial hearing officerís decision awarding reimbursement for Jump Start be reversed or in the alternative, that the impartial hearing officerís decision be affirmed.

The purpose behind the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. ßß 1400 - 1487) is to ensure that students with disabilities have available to them a FAPE (20 U.S.C. ß 1400[d][1][A]).A FAPE consists of special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP (20 U.S.C. ß 1401[8]; 34 C.F.R. ß 300.13; see 20 U.S.C. ß 1414[d]).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., 471 U.S. 359 [1985]).The parent's failure to select a program 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 [1993]).The board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (M.S. v. Bd. of Educ., 231 F.3d 96, 102 [2d Cir. 2000], cert. denied, 532 U.S. 942 [2001]; Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 122 [2d Cir. 1998]; Application of a Child with a Disability, Appeal No. 04-043).

To meet its burden of showing that it had offered to provide a FAPE to a student, the board of education must show (a) that it complied with the procedural requirements set forth in the IDEA, and (b) that the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Bd. of Educ. v Rowley, 458 U.S. 176, 206, 207 [1982]).The Second Circuit has observed that "'for an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression'" (Weixel v. Bd. of Educ., 287 F3d 138, 151 [2d Cir. 2002], quoting M.S., 231 F.3d at 103 [citation and internal quotation omitted]; see Walczak, 142 F.3d at 130).If a procedural violation has occurred, relief is warranted only if the violation affected the student's right to a FAPE (J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]), e.g., resulted in the loss of educational opportunity (Evans v. Bd. of Educ., 930 F. Supp. 83, 93-94 [S.D.N.Y. 1996]), seriously infringed on the parents' opportunity to participate in the IEP formulation process (see W.A. v. Pascarella, 153 F. Supp.2d 144, 153 [D. Conn. 2001]; Brier v. Fair Haven Grade Sch. Dist., 948 F. Supp. 1242, 1255 [D. Vt. 1996]), or compromised the development of an appropriate IEP in a way that deprived the student of educational benefits under that IEP (Arlington Cent. Sch. Dist. v. D.K., 2002 WL31521158 [S.D.N.Y. Nov. 14, 2002]).The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. ß 1412[a][5]; 34 C.F.R. ß 300.550[b]; 8 NYCRR 200.6[a][1]).

††††††††††† Federal regulations require that an IEP include a statement of the studentís present levels of educational performance, including a description of how the studentís disability affects his or her progress in the general curriculum (34 C.F.R. ß 300.347[a][1]; see 8 NYCRR 200.4[d][2][i]).School districts may use a variety of assessment techniques such as criterion-referenced tests, standardized achievement tests, diagnostic tests, other tests, or any combination thereof to determine the studentís present levels of performance and areas of need (34 C.F.R. Part 300, Appendix A, Question 1).

††††††††††† An IEP must include measurable annual goals, with benchmarks or short-term objectives, related to meeting the student's needs arising from his or her disability to enable the student to be involved in and progress in the general curriculum, and meeting the student's other educational needs arising from the disability (34 C.F.R. ß 300.347[a][2]; 8 NYCRR 200.4[d][2][iii][a] and [b]).In addition, an IEP must describe how the student's progress towards the annual goals will be measured and how the student's parents will be regularly informed of such progress (34 C.F.R. ß 300.347[a][7]; 8 NYCRR 200.4[d][2][iii] and [x]).

††††††††††† In addition, the IDEA and its implementing regulations require that the CSE include "at least one regular education teacher of such child (if the child is, or may be, participating in the regular education environment)" (20 U.S.C. ß 1414[d][1][B][ii]; see 34 C.F.R. ß 300.344[a][2]; 8 NYCRR 200.3[a][1][ii]).The regular education teacher member "shall, to the extent appropriate, participate in the development of the IEP of the child, including the determination of appropriate behavioral interventions and strategies and the determination of supplementary aids and services, program modifications, and support for school personnel" (20 U.S.C. ß 1414[d][3][C]; see 34 C.F.R. ß 300.346[d]; 8 NYCRR 200.3[d]).The regular education teacher must also "participate in discussions and decisions about how to modify the general curriculum in the regular classroom to ensure the child's involvement and progress in the general curriculum and participation in the regular education environment" (34 C.F.R. Part 300, Appendix A, Notice of Interpretation, Section IV, Question 24), and participate in any review and revision of the IEP (20 U.S.C. ß 1414[d][4][B]; 34 C.F.R. ß 300.346[d]; 8 NYCRR 200.3[d]).In its official interpretation of the regulations, the U.S. Department of Education explains that the regular education teacher member "should be a teacher who is, or may be, responsible for implementing a portion of the IEP, so that the teacher can participate in discussions about how best to teach the child" (34 C.F.R. Part 300, Appendix A, Notice of Interpretation, Section IV, Question 26).

††††††††††† The U.S. Department of Education has explained that the purpose behind the regular education teacher requirement is for that teacher to serve a critical role in providing input on modifications and supplementary aids and services that would allow the child to remain in the regular education environment to the maximum extent appropriate (64 Fed. Reg. No. 48, at p. 12591). The State Review Officer has found that although a board of education cannot always be expected to know who the student's regular education teacher will be prior to the CSE meeting, it should nevertheless have sufficient information about the student to designate a regular education teacher who is not only appropriately certified to teach the student, but who is also teaching in the subject matter or grade level in one of the programs which might be appropriate for the student (Application of the Bd. of Educ. of the Northport-East Northport Union Free Sch. Dist., Appeal No. 03-062; Application of a Child with a Disability, Appeal No. 02-100, n.1; Application of a Child with a Disability, Appeal No. 02-080; Application of the Bd. of Educ., Appeal No. 02-056; Application of a Child with a Disability, Appeal No. 00-060).

With respect to the first criterion for an award of tuition reimbursement, respondent bears the burden of demonstrating that it offered the student an appropriate program.I concur with the impartial hearing officerís determination that respondent failed to meet its burden of demonstrating that it offered to provide an appropriate program to the student for the 2004-05 school year (IHO Decision, p. 9).Notably, respondent did not offer any evidence or call any witnesses at the hearing (Tr. p. 10). Respondent did not demonstrate that the June 11, 2004 CSE included a regular education teacher ď who is, or who may be responsible for implementing a portion of the IEPĒ or that the IEP that was formulated by the improperly composed CSE was reasonably calculated to provide educational benefit. I find, as did the impartial hearing officer, that the failure to have an appropriate regular education teacher member of the CSE was a procedural violation of the IDEA.I find, given these facts, that such a procedural failure infringed upon parent participation in formulation of the IEP and compromised its development to the extent that educational benefits were denied.For example, lack of participation by an appropriate regular education teacher limited meaningful consideration by the CSE of the special education services it had identified as needed to support the studentís general education instruction (Parent Ex. B at pp. 1, 7). Moreover, the IEP impermissibly did not recommend an educational placement (Tr. p. 55-56) and respondent did not identify a placement for the student until mid-October 2004, well into the 2004-05 school year (Tr. p. 56) (see 8 NYCRR 200.4 [d][2][xiv]; Application of a Child with a Disability, Appeal No. 01-049). ††

With respect to the second criterion for an award of tuition reimbursement, petitioners bear the burden of proof with regard to the appropriateness of the educational program in which they enrolled the student for the 2004-05 school year (M.S., 231 F.3d at 104; Application of a Child with a Disability, Appeal No. 02-027; 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, petitioners must show that York Prep and Jump Start offered an educational program that met the studentís special education needs (Burlington, 471 U.S. at 370; Application of a Child with a Disability, Appeal No. 02-027; 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 child (Application of a Child with a Disability, Appeal No. 02-027; Application of a Child with a Disability, Appeal No. 94-20).

To the extent that the studentís needs were described at the hearing, I concur with the impartial hearing officer and find that the Jump Start program adequately addressed them.I also concur with the impartial hearing officer and conclude that petitioner did not meet the burden of demonstrating that the York Prep educational services were appropriate to meet the studentís special education needs.

Jump Start provides the student with 1:1 tutorials two times per week for 45 minutes (Tr. pp. 16-17).The studentís Jump Start teacher is a certified special education teacher (id.).In addition to the tutorials, the studentís Jump Start teacher is available each morning from 8:00 a.m. to 8:45 a.m. to respond to his questions related to homework assignments or upcoming tests (Tr. pp. 27-28; Parent Exs. D at p. 1; E at p. 3).A similar opportunity to meet with the Jump Start teacher to review assignments and prepare for tests is available from 3:15 p.m. to 4:00 p.m., Monday through Thursday (Tr. p. 28).In addition to assisting a student academically, the Jump Start program supports students through communication with their parents and communication with their teachers regarding classroom progress (Tr. p. 20; Parent Ex. E).

The specifics of the studentís Jump Start sessions are determined by the Jump Start teacher based on the feedback he receives from the studentís York Prep teachers and what the studentís needs are perceived to be (Tr. pp. 25-26).The sessions focus primarily on expressive writing and reading comprehension (Tr. p. 26), which is consistent with addressing the language arts weaknesses identified on his IEP (Parent Ex. B at pp. 7, 8).Moreover, as noted by the impartial hearing officer, the Jump Start program can be identified as an individualized program, comparable to respondentís recommended SETSS services, albeit less intensive, which assists him in remaining focused on tasks and offers some technique in breaking down what he needs to accomplish in class, which in turn alleviates some frustration (IHO Decision p. 10). The support provided through Jump Start is consistent with recommendations made by the studentís psychiatrist (Parent Exhibit C at p.3) and with needs identified on his IEP (Parent Ex. B at pp. 3, 8).

York Prep is a private, general education school with an enrollment of approximately 310 students covering grades six through 12 (Tr. pp. 15, 22; Parent Ex. E).The school presents students with a college preparatory curriculum and ďvirtually allĒ of the schoolís graduates go on to college (Tr. p. 16).Students are placed in a variety of tracks based on their ability (id.).

The student has been placed in the lowest track for English and the second highest track for Algebra, History and Science (Tr. p. 31).The student participates daily in a Fundamentals of Reading class in place of taking a foreign language (Tr. p. 31). The class size for each of the studentís academic classes is as follows: English: 10; Algebra: 16; History: 19; Science: 15; Reading: 7 (Tr. pp. 35-36).The studentís English and reading classes are on a lower track level and therefore they contain fewer students and allow for more support and access to the teacher (Tr. pp. 36-37).

While there are instances that instructional techniques used in York Prepís general education classes, such as the use of outlines, study guides, and audio/visual presentations, are beneficial to the student (Tr. pp. 68-71), I concur with the impartial hearing officer, and do not find sufficient evidence in the record to conclude that petitioner met its burden of demonstrating that York Prep provides a program of specialized instruction to the student that meets the studentís special education needs as identified in the record. Therefore, I concur with the impartial hearing officerís determination that York Prep and Jump Start can be identified as separate programs and that the record does not support reimbursement to petitioners for the general education services provided by York Prep (Application of a Child with a Disability, Appeal No. 99-28).Here the specialized instruction can be attributed to a specific school program(Jump Start) and can be viewed separately from the general education instruction (Bd. of Educ. v. Gustafson, 2002 WL 313798 [S.D.N.Y.]). I note also that at York Prep the student is not receiving suggested counseling and occupational services listed on the IEP (Parent Ex. At p. 8), and that York Prepís Director of Learning and Psychological Services testified that he was unaware the student was diagnosed as having ADHD (Tr. p 38-39).

††††††††††† With respect to the third criterion for an award of tuition reimbursement, I find no basis in the record to disturb the impartial hearing officerís determination that petitionersí claim for tuition reimbursement for the Jump Start Program is supported by equitable considerations.

I have considered petitionersí and respondentís remaining contentions and I find them to be without merit.




Albany, New York




March 30, 2005