The Univeristy of the State of New York Emblem
The State Education Department
State Review Officer

 

No. 05-124

 

 

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 New York City Department of Education

 

 

Appearances:
The Children's Advisory Group, Inc., attorney for petitioner, George Zelma, Esq., of counsel

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

 

DECISION

Petitioner appeals from the decision of an impartial hearing officer which denied her request to be reimbursed for her daughter's tuition costs at the Dwight School (Dwight) for the 2005-06 school year.  The appeal must be dismissed.

The student was 17 years old and attending 12th grade at Dwight when the impartial hearing was conducted on September 21, 2005 (Tr. pp. 10, 72).  Dwight has not been approved by the Commissioner of Education as a school with which school districts may contract to instruct students with disabilities (see 8 NYCRR 200.7).  The 2005-06 school year is the student's fourth year of attendance at Dwight (Tr. p. 72), where the student was unilaterally placed by petitioner.  Prior to her placement at Dwight, the student reportedly attended a parochial school for grades six, seven, and eight (Tr. p. 63).  Petitioner testified that her daughter attended public school "between fourth and sixth grade" (Tr. p. 58).  The student has a history of asthma (Tr. p. 61; Dist. Ex. 1 at p. 1) and has been described as a cooperative student who is eager and willing to accept help (Dist. Exs. 1 at p. 4; 3 at p. 4).  An individualized education program (IEP) developed by respondent's May 2004 Committee on Special Education (CSE) described the student's cognitive functioning as in the average range (Dist. Ex. 3 at p. 3).  The student’s eligibility for special education programs and services and her classification as a student with a learning disability (LD) are not in dispute (Dist. Ex. 1 at p. 1; see 8 NYCRR 200.1[zz][6]).

The record regarding the student's educational history is limited.  Petitioner testified that upon entering public school, the student was "falling through [the] cracks almost immediately," and not performing well in math or performing "appropriately" in reading (Tr. p. 58).  She further testified that the student would frequently cry and be sent to the nurse when she was required to take a test (Tr. p. 59).  The student's teachers reportedly told petitioner that the student "didn't study hard enough" or "didn't know her information" (id.).  At that time, the student was having increased asthmatic episodes (id.).  Petitioner testified that she withdrew the student from classes for a month because the student felt so emotionally upset and overwhelmed in the classroom (id.). 

Petitioner testified that the student received scores below grade level on math and reading tests administered by respondent and that respondent suggested that the student attend respondent's summer reading program in order to advance to the next grade (Tr. pp. 59-60).  The record does not reflect whether petitioner's daughter attended the recommended summer program.  Petitioner subsequently enrolled the student in a parochial school which reportedly provided the student with very small classes and individual attention, for grades six, seven, and eight (Tr. p. 61).  Petitioner testified that during her middle school years, consisting of grades six, seven and eight, the student's school absences due to her asthma and "emotional problems" ranged from 35 to 50 days during a 180-day school year (Tr. pp. 60-61).

Petitioner testified that during the 2004-05 school year, the student experienced an "emotional breakdown" as a result of being behind in her school work due to her participation in a drama production (Tr. pp. 63-64, 85-86).  Petitioner sought outside help for the student during this time and, over the course of approximately one month, petitioner's daughter returned to school for increasing increments of time until she resumed a full-time schedule (Tr. pp. 84-85).  The student attended a summer program at Dwight in June 2005 (Parent Ex. E at pp. 1-3).  Petitioner testified that the student would have been at risk of failing at least two of her classes without the benefit of her attendance at summer school (Tr. p. 66).

Respondent's CSE convened on July 13, 2005 (Dist. Ex. 1 at p. 1).  For the 2005-06 school year, the CSE recommended a general education program with special education teacher support services (SETSS) (id.).  Recommendations included four periods of direct SETSS services with an 8:1 student to teacher ratio, one period of indirect service for teacher collaboration and consultation in the classroom, and one 30-minute individual counseling session each week (Dist. Ex. 1 at pp. 1, 7, 9; Tr. pp. 16-17).  Testing accommodations included extended time, small group instruction, and directions read and reread aloud (Dist. Ex. 1 at p. 9).  No evaluations were cited on the July 2005 IEP.  A teacher's report that was referenced in the IEP indicated that the student had made considerable academic progress, but her organizational skills continued to be an area of need (Dist. Ex. 1 at p. 3).  The IEP also noted that the student continued to work on her "need for approval," and her "feelings relating to her learning disabilities" (Dist. Ex. 1 at p. 4).  Goals and objectives were developed to address deficits in writing (Dist. Ex. 3 at p. 6A), organizational skills (Dist. Ex. 3 at pp. 6B, 6C) and social-emotional skills (Dist. Ex. 3 at p. 6D).

A final notice of recommendation, dated July 19, 2005, recommended the student's placement at Martin Luther King Arts and Technology High School (MLK) (Dist. Ex. 2).  The principal of MLK testified at the hearing and described MLK as a "new design" school based on the "small learning communities" concept (Tr. p. 28).  The principal stated that there are five schools in the building at various stages of growth, with approximately 650 students in the principal's arts and technology high school and that the total building population includes approximately 2,000 students (Tr. pp. 29, 38).

Petitioner testified that, in addition to the individualized attention she received at summer school, the student received individualized attention four times a week through Dwight's Quest program (Quest) (Tr. p. 62).  The student's Quest teacher for the 2005-06 school year testified that Quest was an additional program within Dwight "which enables students to come in during the school day and we work on anything related to academics, whatever is going on in their classroom or their homework" (Tr. p. 40).  Although not described as a special education program, the teacher stated that she worked with students who had learning disabilities as well as students who desired extra help (Tr. p. 41).  Petitioner stated that Quest provided ongoing communication with the student's "main teacher", regular reports to the parent, and weekly discussions regarding problems that may have arisen at school (Tr. pp. 61-62).

            By letter dated July 20, 2005, petitioner notified respondent that she disagreed with the CSE's recommended program and placement and was unilaterally enrolling her daughter in Dwight for the 2005-06 school year (Parent Ex. C).  By letter dated August 18, 2005, petitioner requested an impartial hearing (Parent Ex. A).  Petitioner requested an award of tuition reimbursement, including costs and fees, for the student's 2005-06 school year (id.).

An impartial hearing was held on September 21, 2005.  By decision dated October 31, 2005 the impartial hearing officer found that, inter alia, that:  1) the presence of a regular education teacher at the CSE meeting had not been established, and the absence of that teacher compromised the development of an appropriate IEP; and 2) no one with "knowledge" of the student testified during the impartial hearing and that the record contained insufficient evaluations or assessments of the student  (IHO Decision, p. 7).  The impartial hearing officer concluded that even if the CSE were properly constituted, respondent failed to establish a relationship between the program and placement recommended and the student's disability.  Accordingly, the impartial hearing officer found that respondent failed to establish that it provided a free appropriate public education (FAPE) to the student. 

With regard to petitioner's burden of proof regarding the services she obtained for the student, the impartial hearing officer noted that petitioner testified that while in the same program for the 2004-05 school year, the student had emotional difficulties that affected her educational program and that the student would have failed but for petitioner's supplemental provision of summer school (IHO Decision, pp. 7-8).  The impartial hearing officer found that petitioner had failed to meet her burden to show that the program she selected was appropriate (IHO Decision, p. 8).  The impartial hearing officer did not address the issue of equitable considerations (id.).  She denied the relief requested by petitioner, and dismissed the matter (id.).

On appeal, petitioner asserts that Dwight is an appropriate placement and provides educational benefit and that the equities favor a finding that petitioner is entitled to tuition reimbursement.  Petitioner seeks reversal of that part of the impartial hearing officer's decision that found that petitioner had failed to meet her burden to show that the program that she selected conferred educational benefits on the student.  Petitioner seeks an order awarding her full tuition reimbursement for the student's attendance in the 10-month Dwight program and her participation in Quest during the 2005-06 school year.

Respondent asserts that: 1) the impartial hearing officer correctly determined that petitioner provided insufficient evidence to show whether the program at Dwight was appropriate for the student's special education needs; 2) the impartial hearing officer correctly determined that petitioner failed to meet her burden to show that the private placement at Dwight was appropriate for the student's special education needs; 3) the equities do not weigh in favor of tuition reimbursement; and 4) if, assuming arguendo, the State Review Officer determines that Dwight is an appropriate placement, reimbursement should be limited to tuition costs for Quest for the 2005-06 school year.  Respondent requests that the petition for review be dismissed in its entirety.

A purpose behind the Individuals with Disabilities Education Improvement Act of 2004 (IDEA) (20 U.S.C. §§ 1400 – 1482)1 is to ensure that students with disabilities have available to them a FAPE (20 U.S.C. § 1400[d][1][A]; Schaffer v. Weast, 126 S. Ct. 528 [2005]).  A FAPE includes 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. § 1401[9][D]; 34 C.F.R. § 300.13; see 20 U.S.C. § 1414[d]).2  A board of education may be required to reimburse parents for their expenditures for private 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]; Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192  [2d Cir. 2005]).  In Burlington, the court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (id.).  "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance had it developed a proper IEP" (Burlington, at 370-71; see Application of the Bd. of Educ., Appeal No. 05-073).  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 (Carter, 510 U.S. at 14).

Respondent does not appeal the impartial hearing officer's determination that respondent failed to establish that the student's IEP was appropriate or her determination that the student was not offered a FAPE (IHO Decision, p. 7).  Pursuant to federal and state law, an impartial hearing officer's decision is binding upon both parties unless appealed to the State Review Officer (8 NYCRR 200.5[j][5][v]; see 20 U.S.C. § 1415[i][1][A]; 34 CFR § 300.510[a]).  Having failed to appeal from the impartial hearing officer's decision, respondent is bound by that decision (see Application of a Child with a Disability, Appeal No. 00-057; Application of the Board of Education of the Arlington Central School District, Appeal No. 98-7).  Accordingly, I find that petitioner has prevailed on the first criterion for an award of tuition reimbursement (see Burlington, 471 U.S. 359).

I must now consider whether the placement petitioner selected for her daughter for the 2005-06 school year was appropriate (Burlington, 471 U.S. 359; Application of the Bd. of Educ., Appeal No. 03-062; Application of a Child with a Disability, Appeal No. 02-080).  The private school placement must be "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the child's special education needs (Application of a Child with a Disability, Appeal No. 04-108; Application of a Child with a Disability, Appeal No. 01-010).  The private school need not employ certified special education teachers or have its own IEP for the student (Carter, 510 U.S. 7; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-105).  The test for a parental placement is that it is appropriate, not that it is perfect  (Warren G. v. Cumberland Co. Sch. Dist., 190 F.3d 80, 84 [3d Cir. 1999]; see also M.S., 231 F.3d at 105). 

Petitioner asserts that Dwight and Quest are appropriate because they are providing educational benefit and enabling the student to progress during the 2005-06 school year.  Respondent contends that the impartial hearing officer correctly determined that there was insufficient evidence to demonstrate that Dwight and Quest were appropriate for the student's special education needs.

At the time of the impartial hearing a Quest teacher testified that the private program was appropriate and calculated for the student's needs (Tr. pp. 46-47).  However the teacher had only worked with the student for approximately one week (Tr. p. 50).  She also stated that she was not aware the student had an IEP, nor was she familiar with the term "IEP" (Tr. pp. 47-48).  She also stated that she had not administered any tests to determine the student's needs or progress (Tr. pp. 50-51).  She stated that she was provided with a report to work from, which indicated that the student exhibited difficulty with the comprehension and application of certain mathematical formulas (Tr. pp. 41-42).  I note that this report has not been made a part of the record.  Nor has the author and his or her credentials been identified.  I concur with the impartial hearing officer that the testimony of the Quest teacher was not sufficient to demonstrate that Dwight offered appropriate programming to meet the student's needs.

The record before me includes teacher estimates regarding the student's performance in reading, writing, and mathematics, as represented on the student's May 2004 and July 2005 IEPs (Dist. Exs. 1 at p. 3; 3 at p. 3).  Reading performance was estimated to be at an instructional level of 10.5 in May 2004 and at an instructional level of 11.2 in July 2005 (id.).  Writing performance was estimated to be at an instructional level of 9.5 in May 2004, but the record is unclear regarding the student's performance in writing in July 2005 (id.).  Mathematics performance was estimated to be at an instructional level of 10.5 in May 2004 and at an 11.0 instructional level in July 2005 (id.).  According to her 2004-05 report card, the student's final grade average was 79.47%, with her lowest final average grades in International Baccalaureate English I (76%), and International Baccalaureate Math Studies I (69%) (Parent Ex. E at p. 3).  The student's 2005 summer school report for International Baccalaureate History I and English indicated grades of A- and B, respectively (Parent Ex. E at pp. 1, 2).  Test and quiz grades for various limited time periods from September to October 2005, in the areas of International Baccalaureate History, English, and Mathematics, ranged from "low 80s" to B+ (Parent Ex. J).  This data fails to provide adequate information describing the student's special education and related service needs. 

The only objective assessment submitted at the hearing is the student's June 25, 2005 College Board SAT Student Score Report (SAT Report) (Parent Ex. K).  This test yielded a critical reading score of 640 (87th percentile of national group of college bound seniors), a mathematics score of 510 (46th percentile), and a writing score of 590 (no percentile available).  Scores from the SAT Report do not identify the student's special education needs.

Similarly, although petitioner testified that the Dwight counselor met with the student more than once a week "over the past year" (Tr. pp. 87-88) and helped the student during her "emotional breakdown" (Tr. pp. 63-64, 86), the record contains insufficient evaluative data upon which to assess the student's social-emotional needs.

I concur with the impartial hearing officer that the hearing record does not afford sufficient evaluative data to determine the extent of the student's reading, math, organizational, social-emotional, and/or other needs, and I am unable to determine the services which are appropriate to address those needs (see Application of a Child with a Disability, Appeal No. 05-097; Application of a Child with a Disability, Appeal No. 05-046). Moreover, there is insufficient information in the record to demonstrate how Dwight would meet the student's special education needs as a student with a learning disability.  I concur with the impartial hearing officer and find that petitioner has not demonstrated that the services offered by Dwight and/or its Quest program for the 2005-06 school year were appropriate.  Therefore, the second criterion of the Burlington analysis has not been met (see Burlington, 471 U.S. 359; Application of a Child with a Disability, Appeal No. 04-028).  Having so found, I need not determine whether the equities weigh in favor of petitioner, the third prong of the Burlington analysis (see Burlington, 471 U.S. 359; Application of a Child with a Disability, Appeal No. 03-097).  Based upon my review of the entire record, I find that there is no need to modify the determinations of the impartial hearing officer.

            I have considered petitioner's remaining contentions and I find them to be without merit.

            THE APPEAL IS DISMISSED.

 

Dated:

Albany, New York

 

__________________________

 

February 13, 2006

 

PAUL F. KELLY
STATE REVIEW OFFICER

 

1 On December 3, 2004, Congress amended the Individuals with Disabilities Education Act, however, the amendments did not take effect until July 1, 2005 (see Individuals with Disabilities Education Improvement Act of 2004, Pub. L. No. 108-446, 118 Stat. 2647).  As the relevant events in the instant appeal took place after the effective date of the 2004 amendments, the provisions of the IDEA apply and the citations contained in this decision are to the newly amended statute.

The term "free appropriate public education" means special education and related services that

(A) have been provided at public expense, under public supervision and direction, and without charge;

(B)  meet the standards of the State educational agency;

(C) include an appropriate preschool, elementary, or secondary school education in the State involved; and

(D) are provided in conformity with the individualized education program required under section 1414(d) of this title.

(20 U.S.C. § 1401[9]).