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Application of a CHILD WITH A DISABILITY, by his parents, for review of a determination of a hearing officer relating to the educational program provided by the Board of Education of the City School District of the City of New York


Neal H. Rosenberg, Esq., attorney for petitioners

Hon. O. Peter Sherwood, Corporation Counsel, attorney for respondent, Andrea Moss, Esq., of counsel


Petitioners appeal from the decision of an impartial hearing officer which upheld the recommendation of respondent's committee on special education (CSE) that petitioners' child be enrolled in a modified instructional services-IV (MIS-IV) program in respondent's P.S. 158 for the 1992-93 school year, and which denied petitioners' request that respondent be directed to assume financial responsibility for the child's enrollment in a private school selected by petitioners. The appeal must be sustained.

Petitioner's child is six years old. The child did not begin speaking until he was 22 months old. In 1990, at the age of three, the child was psychiatrically diagnosed as having an atypical pervasive development disorder. The diagnosis was based upon the serious delay in the child's language development, mild evidence of the child's lack of social responsiveness and the child's display of a range of stereotypical repetitive behavior. Finding that the child displayed a level of social development that did not warrant a diagnosis of autism, the psychiatrist recommended that the child continue in a preschool program which would develop his socialization, communication, and imaginative interests. The psychiatrist recommended that consideration be given to teaching the child to use signs to facilitate his communication. In a May, 1991 update, the psychiatrist reported that his observation of the child and a review of school records confirmed his 1990 diagnosis.

During the 1991-92 school year, the child attended a one-half day public preschool program in Toronto, Ontario, where the child and petitioners resided. The child also received speech/language therapy for two hours each day. The child's preschool progress reports reveal that the child adjusted to the preschool program, and began to develop age appropriate play skills, such as sharing and taking his turn in activities. In an October, 1991 speech/language assessment when the child was five years old, his receptive language based upon visual recognition of words was found to be equivalent to that of a child of the age 3 years and 8 months, while his receptive language skills for phrases and sentences were found to be at a three year age equivalency. The child's expressive language was described as significantly below age expectancy. His articulation skills were found to be normal. The evaluator noted that the child had difficulty remaining on task, and recommended that the child receive speech/language therapy to address the delays in the child's receptive and expressive language.

After seeing the child in his preschool program in February, 1992, the psychiatrist reported that the child appeared to be more compliant and expressive, and that he socialized more with peers and adults. When informed of petitioners' intention to relocate in New York City, the psychiatrist emphasized the need to enroll the child in a public school system in order to obtain special education services, as well as an opportunity for the child to interact with non-disabled peers to develop his socialization and communication skills. In a letter dated April 24, 1992, the psychiatrist opined that the child would benefit from a small group setting and reiterated his recommendation that the child have the opportunity to interact with non-disabled peers.

In May, 1992, the child's mother wrote to the chairperson of the CSE of Community School District 2 to request that the CSE evaluate the child and recommend a program for the 1992-93 school year. Following an exchange of correspondence between petitioners and the CSE, petitioners formally consented to the child's evaluation in July, 1992. They enrolled the child for the Summer in a program for learning disabled children of the Parkside School, a private school approved by the State Education Department to provide instruction to speech impaired children. In a CSE social history interview, petitioners described their efforts to improve the child's communication skills, and acknowledged that he continued to display some idiosyncratic behavior, such as hand flapping and perseveration. Petitioners expressed their preference for child's placement in a private school.

On July 31, 1992, the child was evaluated by a CSE school psychologist, who reported that an IQ test revealed that the child had a verbal IQ of 57, a performance IQ of 74, and a full scale IQ of 63. The school psychologist opined that the child's cognitive potential was probably higher than the test revealed, because his scores had been depressed by his speech delay and restlessness during the test. The child displayed adequate visual motor and copying skills, but had difficulty with visual multiple choice questions. The school psychologist was unable to determine whether the child's difficulty with the portion of the test assessing his mathematics skills was caused by his language deficits or limited mathematical ability, but reported that the child could count to 10. The child was described by the school psychologist as functioning in the mildly deficient range, with an adequate perception of the world. The school psychologist noted that the child had a low tolerance for frustration and displayed impulsive behavior, but that he responded to praise and encouragement. He opined that the child needed speech/language therapy to remediate his language delays.

A speech/language evaluation was conducted on August 6, 1992. The evaluation was ultimately discontinued because of the child's restlessness. Nevertheless, the child's receptive language was assessed to be equivalent to that of a child of the age of 3 years and 8 months, which reflected a delay of 2 years and 2 months. Expressively, the child used short phrases and three to four word sentences. The evaluator reported that the child was generally unable to maintain a conversation. The child could follow one-step commands, but exhibited difficulty with two-step commands. The child's articulation and auditory acuity were in the normal range. The evaluator did not reveal whether she had assessed the child's use of sign or total communication. The evaluator recommended that the child receive individual speech/language therapy twice per week and small group speech/language therapy once per week.

In an educational evaluation also conducted on August 6, 1992, after the child's speech/language evaluation, the child was reported to have been restless, and to have required prompting from his mother to participate in the evaluation. The evaluator reported that the child displayed low frustration tolerance and was highly distractible during the evaluation. The child correctly identified colors, and could count objects to 8 and count by rote to 16. The evaluator reported that the child recognized most upper case letters, and could write his first name. The evaluation was discontinued because the child was reported to be restless. The evaluator opined that the child would benefit from a small class and much individual attention.

On August 24, 1992, the CSE of Community School District 2 recommended that the child be classified as emotionally disturbed/speech impaired, and that he be enrolled in a MIS-IV class with a child to adult ratio of 10:1+1. The CSE further recommended that the child receive individual speech/language therapy twice per week and small group speech/language therapy once per week. On August 25, 1992, petitioners were offered a placement for the child in P.S. 158. In a letter to the CSE of Community School District 3, dated August 27, 1992, the child's mother requested that transportation be provided for the child to attend the Parkside School, which is located in that Community School District.

Petitioners subsequently requested that an impartial hearing be held to review the CSE's classification and placement recommendations, and to obtain public funding for their unilateral placement of the child in a private school. The hearing was held on November 23, 1992. During the hearing, the parties stipulated that the child should be classified as speech impaired, rather than as emotionally disturbed/speech impaired. The child's classification is not disputed in this appeal, and will not be reviewed (Hiller v. Bd. of Ed. Brunswick CSD et al. 674 F. Supp. 73 [N.D.N.Y., 1987]). The hearing officer held that respondent had met its burden of showing the appropriateness of the MIS-IV program and of the recommended class in P.S. 158, and declined to reach the issue of the private school preferred by petitioners (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359).

Petitioners assert that the CSE was not validly composed, because it did not include a teacher authorized to teach speech impaired children. Section 4402 (1)(b)(1) of the Education Law requires that a CSE consist of at least a school psychologist, a teacher or administrator of special education, a school physician, a parent of a child with a disability and the child's teacher as defined in Federal regulations, except that the school physician need not attend a CSE meeting unless the physician's presence is requested by the child's parents. In the case of a child not previously classified as having a disability, either the child's regular teacher or a teacher qualified to provide instruction in the area of the child's suspected disability must attend the CSE meeting (34 CFR 300.344 Note 1: [b]). The hearing officer found that the CSE which made the August 24, 1992 recommendation was validly composed, because a speech clinician who had taught and provided speech/language therapy to speech impaired children was a member of the CSE. The record supports the hearing officer's finding.

Petitioners challenge the adequacy of the evaluation performed by the CSE. They assert that the CSE failed to observe the child in summer school, prior to making its recommendation. State regulation requires as part of an individual evaluation that the child be observed in the current educational setting (8 NYCRR 200.4 [b][4][viii]). Although this child had not attended any of respondent's schools at the time of his evaluation, the record reveals that the CSE's staff was aware of the child's enrollment in the private school's summer program. Respondent acknowledges that its staff was aware of the child's enrollment in the summer program, but asserts that the CSE reviewed two classroom observation reports by the child's psychiatrist in Toronto. The two reports (Exhibits 2 and 5) include only very brief and general comments about the child's behavior in the preschool program. I find that neither report is a classroom observation within the meaning of the regulation.

An observation of the child in the summer program would have yielded valuable information about the child's learning style and his management needs (Application of a Handicapped Child, 27 Ed. Dept. Rep. 456). In this instance, the parties have strongly divergent views about the child's need for total communication and the degree of his distractibility. The child's educational and speech/language evaluations were not completed. Although respondent's evaluators noted the child's restlessness and distractibility during the child's psychological, educational and speech/language evaluations, their respective reports do not reveal whether the evaluators considered the possibility that the child's behavior reflected his alleged inability to focus when exposed to a noisy environment. Respondent's witnesses at the hearing conceded that the child's reaction to noise could have affected his performance during the evaluations, but were unable to offer any additional insight because they had not administered the evaluations and they were not personally familiar with the child.

State regulation requires that, upon referral of a child, a CSE must initiate an individual evaluation consisting of at least a physical examination in accordance with the provisions of section 904 of the Education Law, an individual psychological examination, a social history and other suitable examinations, except that a psychological evaluation need not be performed under certain circumstances which are not relevant to this appeal (8 NYCRR 200.4 [b][1]). There is no evidence in the record of a physical examination of the child.

I find that the child's individual evaluation was deficient because of the CSE's failure to observe the child at the private school (Application of a Child with a Handicapping Condition, Appeal No. 92-26; Application of a Child with a Handicapping Condition, Appeal No. 91-11), and because there is no evidence that a physical examination was performed (Application of a Child with a Handicapping Condition, Appeal No. 91-23; Application of a Child with a Handicapping Condition, 30 Ed. Dept. Rep. 416). In view of my finding that the child's evaluation was deficient, it follows that the hearing officer's finding that the MIS-IV program was appropriate cannot be sustained (Application of a Child with a Handicapping Condition, 30 Ed. Dept. Rep. 64).

The hearing officer's decision must also be annulled because respondent did not meet its burden of establishing the appropriateness of its recommended program (Application of a Child with a Handicapping Condition, Appeal No. 92-39; Application of a Child with a Handicapping Condition, Appeal No. 92-33; Application of a Child with a Handicapping Condition, Appeal No. 92-1). An appropriate program begins with an individualized education program (IEP) which accurately reflects the results of evaluations to identify the child's needs, provides for the use of appropriate special education services to address the child's needs, and establishes annual goals and short-term objectives which are related to the child's educational deficits (Application of a Child with a Handicapping Condition, Appeal No. 92-42; Application of a Child with a Handicapping Condition, Appeal No. 92-27). This child's IEP provided that he needed to be in a small, structured setting designed for children with cognitive, social and language delays. The annual goals set forth in the IEP are focused upon improving the child's fund of general information, reading, writing, mathematics and language skills. However, the annual goals do not address the child's special education needs as revealed in the child's evaluation. Those needs include improvement of his attention span, increased social interaction with peers and adults, increased spontaneous language usage, reduction of stereotypical behaviors, and improvement of his ability to learn in a group, rather than on a 1:1 basis.

Having determined that the hearing officer's decision upholding the appropriateness of the MIS-IV program recommended by the CSE must be annulled, I must now consider petitioners' request for an order directing respondent to pay for the cost of the child's attendance at the Parkside School. A parent is entitled to tuition reimbursement for the child's unilateral placement in a private school, if the placement recommended by the CSE is inappropriate, the placement selected by the parent is appropriate, and equitable considerations support the parent's claim for reimbursement (School Committee of the Town of BurlingtonsupraApplication of a Child with a Handicapping Condition, Appeal No. 92-3; Application of a Child with a Handicapping Condition, Appeal No.90-8). In view of my finding that respondent failed to demonstrate that it had offered an appropriate program, the first portion of the Burlington criteria has been satisfied.

For purposes of tuition reimbursement, a private school selected by a parent must be approved by the State Education Department (Tucker v. Bayshore Union Free School District, 873 F. 2d 563 [2d Cir., 1989]; Hiller v. Brunswick CSDsupraLombardi v. Nyquist, 63 AD 2d 1058, lv. to app. den., 45 NY 2d 710). At the hearing, respondent's representative alluded to an alleged withholding of State approval of the Parkside School. The Parkside School's administrative director testified at the hearing that the State Education Department had withheld its approval of new admissions to the Parkside School for a two-week period in September, until the School received a certificate of occupancy for its new location. However, there is nothing in the record to suggest that the School was not, or currently is not, approved to provide instruction to petitioners' child.

Parental placements are also subject to the requirement that each child be placed in the least restrictive environment (P.J. v. State of Connecticut, 18 IDELR 1010 [D. Conn., 1992]; Application of a Child with a Handicapping Condition, Appeal No. 92-3; Application of a Child with a Handicapping Condition, Appeal No. 92-25; Application of a Child with a Handicapping Condition, Appeal No. 92-30). As described by the private school's administrator in her testimony at the hearing, the Parkside School's program would meet the child's needs in the areas of language development, communication and attention to task, while offering a curriculum comparable to respondent's. However, the Parkside School serves only disabled children, and its children have only limited access to non-disabled peers in a local park during the school day. Notwithstanding the statutory preference for children with disabilities being educated with their non-disabled peers (Carlos R. v. Ambach, 557 EHLR 311 [E.D. N.Y., 1986]), the U.S. Department of Education has repeatedly opined that the least restrictive environment for each child must be determined on the basis of the child's individual needs (Lott, 16 EHLR 84; Singer, 17 EHLR 279; McCoy, 18 IDELR 307). In the absence of any evidence to the contrary, I credit the testimony of the private school's administrative director and the child's mother that the child would have a difficult time coping with a large, noisy environment such as a public school, and would be at risk of regressing. The administrative director testified that when the child becomes anxious, he will "tune out", and that the child requires individual assistance in modeling appropriate communication even in casual social situations. The director's testimony is consistent with a report from the child's preschool, which noted that the child responded to language modeling, during confusing or upsetting situations. Given the nature of the child's disability, the case involves more than speculation about the child's ability to adjust to a new class. Upon the record before me, I find that the child's placement in the Parkside School is consistent with the requirement of least restrictive environment (Application of a Handicapped Child, 27 Ed. Dept. Rep. 50).

I further find that equitable considerations support petitioners' claim. Respondent failed to perform an adequate evaluation. Its CSE recommended a classification which was clearly unsupportable, and was changed during the hearing. Petitioners have complied with the requirements of statute and regulation (cf. Tuckersupra).


IT IS ORDERED that the decision of the hearing officer is annulled, and;

IT IS FURTHER ORDERED that respondent shall assume responsibility for the child's tuition at the Parkside School for the 1992-93 school year, and shall reimburse petitioners for their expenditures for tuition from September,1992 to date, upon submission of proof by petitioners to respondent of such expenditures.

Topical Index

CSE ProcessCSE Composition
CSE ProcessSufficiency of Evaluative Info
Parent Appeal
Unilateral PlacementLRE