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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 program provided by the Board of Education of the City School District of the City of New York


Hon. O. Peter Sherwood, Corporation Counsel, attorney for respondent, Todd Bromberg, Esq., of counsel


Petitioner appeals from the decision of an impartial hearing officer which upheld the recommendation of respondent's committee on special education (CSE) that petitioner's child be enrolled in an approved private high school day program for the 1992-93 school year, and which denied petitioner's request that respondent be compelled to contract with an unapproved private residential school for the child's instruction. The appeal must be dismissed.

Petitioner's child is 18 years old. The child's classification as learning disabled is not disputed. In a private psychological evaluation performed in 1985, when the child was 10 years old, the child was found to be of average intelligence, but to have a severe impairment in his ability to acquire basic skills. It was reported that he had deficits in auditory short-term memory, and an inability to decode written language into oral language or vice versa. The child's reading, spelling, and arithmetic were reported to be severely deficient.

In a triennial psychological re-evaluation conducted in April, 1992, the child's verbal IQ was reported to be 97, and his performance IQ was reported to be 105. The child exhibited relative strength in verbal abstraction, understanding social situations, and tasks involving spacial relations and visual sequencing. The child was reported to have deficits in his factual recall and his graphomotor (handwriting) skills. The school psychologist also reported that the child had some problems with coping strategies, and recommended that the child receive assistance for social and emotional development.

A triennial educational evaluation was conducted in February, 1992. The child's reading decoding skills were reported to be at a 7.5 grade level, while his reading comprehension skills were reported to be above the 12th grade level. His mathematical computation skills were reported to be just below the fifth grade level. The child's knowledge of science was reported to be at approximately the eighth grade level, and his knowledge of social studies was reported to be above the 12th grade level. The child's spelling skills were found to be at the second grade level, which the evaluator attributed to the child's auditory memory deficits. The child's writing was described as severely delayed with poor graphomotor skills, and poor punctuation.

The child reportedly had learning difficulties in the early elementary grades while attending public school. Although he was reportedly referred to a school-based support team for an evaluation, he was not classified as a child with a disability. The child remained in public school through third grade. The child attended a regular education private school for fourth grade. For fifth grade during the 1985-86 school, respondent's CSE recommended that the child be classified as learning disabled and be placed in a special class with individual counseling once per week. He remained in a modified instructional services-I class for two years. For the 1987-88 and 1988-89 school years, the child attended at respondent's expense the Churchill School, a private school approved by the State Education Department to provide instruction to children with disabilities. In September, 1989, the child entered the Community School, a private school which is also approved by the State Education Department to provide instruction to children with disabilities. The child has remained in the Community School, at respondent's expense.

On May 8, 1992, the CSE met with petitioner to recommend the child's program for the 1992-93 school year. Petitioner expressed her concern about her child remaining in the Community School, but agreed that the child should remain in a private, day school special education program. The CSE recommended that the child remain in the Community School, and continue to receive individual counseling once per week. The child's individualized education program (IEP) for the 1992-93 school year provided that the child would remain enrolled in a high school diploma program which included annual goals to improve his mathematical computation, spelling and written communication skills.

During the Summer of 1992, the child attended a summer camp program of the Kildonan School, which is not approved by the State Education Department to provide instruction to children with disabilities. In a letter to the chairperson of the CSE dated August 5, 1992, an attorney for petitioner requested that respondent pay for the child's attendance at the Kildonan School for the 1992-93 school year. Petitioner was subsequently advised by a representative of the CSE that respondent could not pay for the child's attendance at an unapproved school, and that the CSE had not recommended a residential placement. However, respondent did agree to allow petitioner to enroll the child in any approved private school at respondent's expense, in accordance with the order of the Court in Jose P. et al. v. Ambach et al. (79 C 270, U.S.D.C. ED. N.Y., 1982). To assist petitioner, respondent sent information about the child to four private, State approved schools for children with learning disabilities. Two of the schools expressed interest in having the child attend. However, petitioner would not consider either school for the child because the schools did not employ a specific instructional technique favored by petitioner. As the record of the hearing demonstrates, respondent continues to be willing to pay for the child's instruction as a day student in any approved private school chosen by the petitioner.

Petitioner requested that an impartial hearing be held to review the CSE's recommendation. The hearing commenced on January 20, 1993, and concluded on February 5, 1993. In a decision dated March 11, 1993, the hearing officer held that the child's placement in the Community School was appropriate, because the child had made progress, despite having been absent for 99 days during the 1991-92 school year. Although petitioner had asserted that the child's absences had been the result of illness, the hearing officer found that there was no basis in the record to support petitioner's assertion. The hearing officer noted that there was evidence in the record that the transportation provided by respondent required the child to travel in excess of two hours each way between his home on Roosevelt Island and the Community School in Westwood, New Jersey, which could have a negative impact upon his ability to learn at school. The hearing officer directed the CSE to provide transportation in an appropriate vehicle at no more than 90 minutes each way between home and school. With respect to petitioner's request or an order directing that the child be educated at respondent's expense in the Kildonan School, the hearing officer held that such relief could not be granted because the CSE had recommended an appropriate program, the residential placement sought by petitioner was not the least restrictive environment, and the Kildonan School was not State approved.

Petitioner asserts that as the result of a change in the date of the commencement of the hearing only two days before the hearing was scheduled to begin, one of her witnesses was unable to be present on the rescheduled date of hearing. Petitioner, who was not represented by an attorney at the hearing, further asserts that she was deprived of the assistance of the witness in cross-examining respondent's witnesses who testified on the first day of the hearing and who were not present on the second day of the hearing.

I have previously held that a hearing officer's refusal to grant a parent's request for an adjournment of a hearing scheduled on brief notice is a basis for annulling the hearing officer's decision because the parent was effectively deprived of the assistance of an advocate (Application of a Child with a Disability, Appeal No. 93-2). Respondent has generally denied petitioner's assertions, but has not presented any evidence to refute petitioner's assertion that the hearing was re-scheduled on only two days' notice. In reviewing the record I note that petitioner did not request an adjournment prior to or at the beginning of the rescheduled hearing. Nor did she request that the first day of hearing witnesses attend the second day of hearing. The record reveals that at the end of her testimony on January 20, 1993, petitioner requested an opportunity to present two witnesses, neither of whom was present. The hearing officer agreed to adjourn the hearing to allow petitioner to present her witnesses. On the second day of the hearing, one of the two witnesses testified on petitioner's behalf, and a written statement by the absent witness was admitted into evidence. Petitioner's witness who testified had read the transcript of the first day of the hearing and expressed his disagreement with the assessment of the child's progress which had been made by respondent's witnesses in the prior hearing day. Under the circumstances, I find that the hearing was conducted fairly and there is no basis in the record for annulling the hearing officer's decision.

Section 4402 (1)(b)(1) of the Education Law requires each board of education to establish a CSE composed of at least the child's teacher, a school psychologist, a teacher or administrator of special education, a school physician, and the parent of a child with a disability who resides in the school district. The presence of the physician member is not mandatory at CSE meetings, unless requested by the child's parent. However, a board of education may not dispense with the attendance of other members. The child's IEP prepared at the May 8, 1992 CSE meeting reveals that there was no parent member of the CSE at that meeting. The IEP is therefore invalid (Application of a Child with a Disability, Appeal No. 93-11; Application of a Child with a Handicapping Condition, Appeal No. 92-31). However, the CSE met again on January 19, 1993, when it prepared a new IEP for the child. The new IEP is substantially similar to the May 8, 1992 IEP, with regard to the services to be provided and the child's annual goals. Each of the required CSE members, except the child's teacher, was present at the January 19, 1993 CSE meeting. The child's IEP reveals that his teacher at the Community School participated in the January CSE meeting by telephone conference call, which is permissible under Federal regulation (34 CFR 300.348 [a][2]).

The central issue in this appeal is the appropriateness of the program recommended by the CSE for the 1992-93 school year. Respondent bears the burden of establishing the appropriateness of the program recommended by the CSE (Matter of Handicapped Child, 22 Ed. Dept. Rep. 487; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Child with a Disability, Appeal No. 93-9). To meet its burden, respondent must demonstrate that the recommended program is reasonably calculated to allow the child to receive educational benefits (Bd. of Ed. Hendrick Hudson CSDv. Rowley, 1458 U.S. 176), and that the recommended program is the least restrictive environment for the child (34 CFR 300.550 [b]; 8 NYCRR 200.6 [a][1]).

An appropriate program begins with an 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 special education 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 Disability, Appeal 93-9).

The child's January 19, 1993 IEP identifies the child's special education needs in the academic areas of reading, spelling, written communication and mathematics, as well as his social and emotional needs revealed in previous evaluations. The IEP provides for appropriate specialized instruction in the areas of the child's academic needs and for counseling to address his social and emotional needs including poor social skills and poor self-image. At the hearing in this matter, petitioner's witness testified that the IEP should include a description of needed transition services as the child leaves secondary school. A recent Federal regulatory change imposed this requirement (34 CFR 300.346 [b]). Although the child's IEP should be revised to describe any necessary transition services, I find that this defect in the child's IEP does not afford a basis for concluding that the child's present program is inappropriate. When the CSE does revise the child's IEP to plan for his future, it must also more extensively determine his vocational skills, aptitudes and interests (8 NYCRR 200.4 [b][4][vii]).

At the hearing in the proceeding, the education director and the child's tutor at the Community School described the specialized instruction which the child receives. They testified that the child's reading decoding and spelling deficits are addressed in a reading class in which the Orton-Gillingham technique favored by petitioner is used. Referring to the child's high level of reading comprehension, the child's tutor testified that the child required an enhancement which his literature class provided. They also testified that multi-modality instructional methods are used in each of the child's classes to foster his ability to benefit from instruction. The record reveals that the child's word attack (decoding) skills and reading comprehension skills have improved during his attendance at the Community School. However, the results of standardized tests performed in 1989 and again in 1992 suggest that the child has not progressed in spelling or mathematical computation. Petitioner's witness opined that the child's writing had also not improved and that the child's lack of progress in these areas must have resulted from the use of inappropriate or inadequate teaching techniques. The witness, who is not licensed or certified as a teacher, conceded that he had not visited the Community School or discussed its program with its staff, and was unaware of the child's quarterly progress reports from the Community School during the 1991-92 school year which are part of the record in this proceeding.

The child's progress reports reveal that his academic performance and behavior were generally satisfactory in the first half of the school year, but declined during the remainder of the year. Virtually every one of the child's teachers reported that the child's frequent absence from school had seriously impacted upon his academic progress. The record discloses that the child was absent for approximately one-half of the number of days in the 1991-92 school year. The child testified that the main reason for his absence had been because he had missed the van sent by respondent to transport him to the private school. The child further testified that he had been frequently sick. Petitioner, who asserted that the child had an immune system deficiency, was asked by the hearing officer to provide a statement of the child's health status by his physician. The physician's statement does not refer to the child's immune system deficiency or to any significant health concern for the child. Regardless of the reason for the child's extensive absences from school, it is readily apparent that such absences have had a detrimental effect upon his educational program.

I have considered petitioners' assertion that the child requires a program which exclusively uses the Orton-Gillingham technique. At the hearing, petitioner testified that the child made substantial improvements academically after attending a summer camp in which the technique was used. She further testified that she chose not to disclose the results of tests administered to the child at the end of camp to the Community School, and she did not provide the results to the hearing officer. I must find that the allegedly dramatic improvement in the child's skills after he attended a summer camp in 1992 has not been substantiated in the record before me, and that the record affords no basis for concluding that the child requires the use of a particular instructional technique.

Upon the record before me, I find that respondent has met its burden of establishing the appropriateness of the day private school program recommended by the CSE. Since I have found that the recommended day placement is appropriate, the residential program sought by petitioner would not be the least restrictive environment (Application of a Child with a Handicapping Condition, Appeal No. 91-28). At the hearing, petitioner asserted that the child requires a residential placement because such a placement would provide more structure and would alleviate the transportation problems the child has encountered. I am not persuaded by this record that this child's needs, centered upon his unwillingness to do homework, cannot be adequately addressed by the parental responsibility to ensure that the child completes his homework. Moreover, the hearing officer addressed the child's transportation problems and needs in his decision. Finally, the Kildonan School is not approved by the State Education Department to provide the service requested. In order to obtain public funding for tuition at a private school, such school must meet State educational standards (Tucker v. Bayshore UFSD, 873 F. 2d 563 [2nd Cir., 1989]). Accordingly, I must find that respondent cannot be required to pay for the child's tuition at the Kildonan School.

Although petitioner asserted at the hearing that the transportation problems had been resolved, she now asserts that respondent has not provided appropriate transportation, despite the hearing officer's order that directed respondent to do so. The hearing officer retained jurisdiction in this matter. If petitioner wishes to pursue this issue, she should request that the hearing officer reopen the hearing on the limited issue of the appropriateness of the child's transportation.


Topical Index

Parent Appeal
Preliminary MattersConduct of Impartial Hearing
Transportation Services