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 services by the Board of Education of the New Paltz Central School District
Shaw and Perelson, LLP, attorneys for respondent, Garrett L. Silveira, Esq., of counsel
Petitioner appeals from the decision of an impartial hearing officer which held that respondent had offered to provide respondent's child with an appropriate educational program during the 1994-95 school year, and which denied petitioner's request for an order requiring respondent to reimburse petitioner for the cost of tuition at the private, residential school in which petitioner had unilaterally placed the child. The appeal must be sustained in part.
Respondent argues that the appeal should be dismissed on procedural grounds because petitioner allegedly failed to serve a notice of intention to seek review, as well as the notice with petition and the petition, in the manner prescribed by Part 279 of the Regulations of the Commissioner of Education (8 NYCRR 279). Section 279.2 (b) of the Regulations of the Commissioner of Education provides that:
" (b) The notice of intention to seek review shall be served upon the board of education, the district clerk or the chief school officer not less than 10 days before service of a copy of the petition for review upon such board of education, district clerk or chief school officer, and within 30 days after receipt of the decision sought to be reviewed. The petition for review shall be served upon the board of education, the district clerk or the chief school officer within 40 days after receipt of the decision sought to be reviewed."
The record of this appeal includes two copies of a handwritten letter, dated August 25, 1995, from petitioner to Dr. Margaret Veve, respondent's Director of Pupil Personnel Services. The letter indicated petitioner's intention to appeal from the hearing officer's decision, but did not include the prescribed statement about respondent's responsibility to file copies of the hearing transcript, exhibits, and hearing officer's decision with the State Education Department (cf. 8 NYCRR 279.2 [a]). The first copy of the letter included a notation that it was received on August 25, 1995 by Ruth Cahill, whose position has not been identified. A second copy of petitioner's letter was apparently sent to respondent's attorney, who filed the record of the hearing with the State Education Department. Since the purpose of the notice of intention to seek review is to place a board of education on notice of its obligation to prepare and file the record of the hearing in a timely manner, which was in fact done in this case, I find that respondent's objection to the manner in which the notice of intention to seek review was served is without merit (Application of a Child with a Disability, Appeal No. 93-40).
Respondent also asserts that the notice of petition and petition were not served upon a member of respondent, the district clerk, or the superintendent of schools as required by 8 NYCRR 279.2(b). The record reveals that the petition, which was initially filed with the Office of Counsel of the State Education Department on September 5, 1995, was returned to petitioner because it was not verified, and did not include a notice of petition. In addition, petitioner failed to include proof of service. The petition was refiled on September 29, 1995, with an affidavit of personal service of the notice of petition and petition upon respondent's attorney on September 28, 1995. There is no evidence in the record that petitioner was informed that respondent's counsel could not accept service of the petition, on behalf of respondent (cf. DeVore v. Osborne, 78 A.D. 2d 915 [3rd Dept., 1980]). I find that it would not be equitable nor consistent with the purpose of both Federal and State law governing this appeal to require petitioner to serve her papers again. Respondent was clearly on notice of the commencement of this appeal, and it has not offered evidence that it has been prejudiced by the allegedly improper service. Under the circumstances, I will deny respondent's request to dismiss the appeal because of petitioner's failure to adhere to the regulatory provisions governing service of the petition (Application of a Child with a Disability, Appeal No. 93-7).
Respondent further asserts that the appeal should be dismissed as untimely. It bears the burden of proving its affirmative defense that the appeal is untimely (Application of a Child with a Disability, Appeal No. 93-48; Application of a Child Suspected of Having a Disability, Appeal No. 94-39). The hearing officer's decision was dated July 26, 1995. Respondent asserts that it received its copy on July 27, 1995, and that petitioner "must have" received her copy on or before August 1, 1995. However, it has not offered proof of when petitioner received her copy of the decision (cf. Hyde Park CSD v. Peter C., Sharon C. and the State Review Officer, 93 Civ. 0250 [S.D. N.Y., 1994]; Application of a Child with a Disability, Appeal No. 93-23). In addition, the record reveals that petitioner did attempt to commence her appeal within 40 days after August 1, 1995, the date by which petitioner must have received her copy of the hearing officer's decision, according to respondent. Although her initial attempt was flawed, petitioner did serve the petition within 14 days after receiving instructions about perfecting her appeal from the Office of Counsel. In the absence of any evidence of prejudice to respondent as a result of petitioner's slight delay, I decline to dismiss the appeal as untimely.
Petitioner's son is 15 years old. In September, 1985, the child entered kindergarten in respondent's Duzine Elementary School. In December, 1985, the child was referred to respondent's committee on special education (CSE) for an evaluation because of his reported inability to attend to, or participate in, group instruction, and his below average readiness skills, despite having attended nursery school for two years. Respondent's school psychologist reported that the child achieved a verbal IQ score of 107, a performance IQ score of 101, and a full scale IQ score of 105. She also reported that the child exhibited strength in abstract reasoning, and weaknesses in numerical concepts, auditory memory, and visual motor skills. The psychologist, who had observed the child in his kindergarten class, reported that he was the only child who was consistently inattentive to the teacher's lesson, and that he was easily distracted even on a one-to-one basis. She noted that the child was to be neurologically evaluated at St. Francis Hospital in Poughkeepsie, N.Y., and deferred making a recommendation pending receipt of the results of that evaluation. In January, 1986, a St. Francis Hospital neurologist reported that the child's fine motor coordination was below age expectation, but that he did not have a seizure disorder, or a learning disability. He opined that the child had an attention deficit disorder (ADD), and recommended that he receive the medication Ritalin for that condition.
The CSE did not recommend that the child be classified as a child with a disability, reportedly because his parents were opposed to his identification as a child with a disability. He repeated kindergarten during the 1986-87 school year, during which he reportedly took Ritalin for a brief period. The child's use of the drug was subsequently discontinued because his pediatrician was concerned about the possible effect of the drug on the child's congenital heart condition.
In March, 1988, when the child was in the first grade, he was referred by his parents and his teacher to the CSE because of his low academic performance and behavioral difficulties. The referral indicated that the child distracted other children by humming, singing, interrupting, and making gross arm movements in class. He reportedly had difficulty counting beyond 13, blending sounds, and tracking. His penmanship was described as poor. In a speech/language evaluation, the child was reported to have appropriate expressive language skills, but below average receptive language skills, which the evaluator attributed to a temporary hearing loss in the child's right ear. The evaluator opined that the child did not require speech/language therapy. The child was re-evaluated by respondent's school psychologist, who noted that the child had made slow progress in reading and that his graphomotor (handwriting) skills were severely delayed. She noted that the child continued to be quite distractible, and that the deficits which the child had exhibited during the 1985 psychological evaluation appeared to be more severe. The school psychologist recommended that the child receive resource room services.
In April, 1988, the CSE recommended that the child be classified as learning disabled. The CSE also recommended that the child receive resource room services for five periods per week. The child remained classified as learning disabled, and continued to receive five periods per week of resource room services through the fourth grade. In the Spring of 1990, the child's scores on the New York State Pupil Evaluation Program third grade reading and mathematics tests were below the Statewide reference point. The child reportedly received remedial mathematics instruction from respondent, and was privately tutored in reading and writing, while in the fourth and fifth grades.
In April, 1991, as the child neared the end of the fourth grade, he achieved grade equivalent scores of 2.8 in reading comprehension, 2.6 in language mechanics, 2.8 in language expression, 2.6 in spelling, and 2.5 in mathematics, on the group administered Comprehensive Tests of Basic Skills (CTBS). His achievement test scores were comparable to those which he had achieved on an individually administered test during his triennial psychological evaluation, which was performed in February, 1991. In his triennial evaluation, the boy achieved a verbal IQ score of 98, a performance IQ score of 105, and a full scale IQ score of 101. The psychologist reported that the child was occasionally distracted by environmental stimuli, but was more frequently distracted by his own thoughts. She did note that the child's graphomotor skills had improved, and were satisfactory.
For the 1991-92 school year, during which the child was in the fifth grade, in respondent's Middle School, the child received ten periods per week of resource room services. His individualized education program (IEP) annual goals were to improve his study skills, reading comprehension, written expression, and spelling skills. At the hearing in this proceeding, one of respondent's school psychologists testified that the child's teachers believed that he was not completing a significant amount of his school work. In May, 1992, the child failed to achieve a score at or above the Statewide reference point in the New York State Pupil Evaluation Program fifth grade writing test.
A private psychologist who evaluated the child in December, 1991 reported that the child had achieved grade equivalent scores of 2.4 in reading, 4.0 in mathematics, 2.5 in written language, and 5.1 in knowledge (retained information about science, social studies and the humanities). The psychologist also reported that the child was best able to learn through auditory modalities, and that the child required specialized assistance in reading and writing. He briefly alluded to the boy's social/emotional difficulties, and suggested that the boy receive outside counseling.
On May 27, 1992, the CSE recommended that the child continue to receive ten periods per week of resource room services and one period per week of individual counseling while in the sixth grade, during the 1992-93 school year. The child's IEP indicated that he was to receive extended time limits to complete tests which were to be administered in a separate location, with directions and questions read to the child. The IEP included annual goals to improve the child's skills in reading comprehension, mathematics and written expression. In addition, the IEP included goals relating to improving the child's ability to cope with frustration, relate appropriately to peers, and improving his self-concept and social skills.
During the sixth grade the child also received private counseling, which petitioner obtained for the child after he had expressed a suicidal ideation. The record indicates that petitioner conceded at the hearing that the child and his father had conflicts, which contributed to the boy's unhappiness at that time. In January, 1993, respondent's school psychologist solicited comments about the child from the boy's teacher. His science teacher reported that the boy was unable to follow lessons, or to answer simple questions. The boy's reading and language arts teacher reported that the child had difficulty keeping up with work, although she had modified his program. Nevertheless, he reportedly "day dreamed" in her class, and did not remain on task. The child's mathematics teacher reported that the child had been able to keep up with his work, with the assistance of his resource room teacher, but had recently fallen behind because of absences from school. He recommended that an alternative program be developed for the child. The school psychologist also asked the child's teachers to provide information which the school psychologist used to prepare an attention deficit disorder rating scale, in which the boy was found to be at very high risk in the areas of inattention and academics.
In February, 1993, the child was evaluated by a neurologist, who noted that the child had exhibited mild clumsiness in his gross motor movements. He opined that the child was neurologically impaired because of his ADD, and his difficulties with organization, phonics, and comprehension of the written word. He recommended that the child receive medication for his ADD, and that he receive the services of a teacher's aide in class and the use of books on tape to facilitate his comprehension of written work. The boy reportedly began to receive daily doses of Ritalin for his ADD, shortly after his neurological evaluation.
In February, 1993, the child was evaluated at the Yale University School of Medicine as a participant in a research study on ADD. He achieved a verbal IQ score of 86, a performance IQ score of 96, and a full-scale IQ score of 90. His short-term auditory memory was reported to be below average, and he exhibited a significant weakness in his ability to complete a rote, visual-motor task requiring concentration. He achieved standard scores of 78 in word attack skills, 78 in passage comprehension, 68 in mathematical calculation and 67 in applied problems (mathematical application). The report of the evaluation indicated that the child's attention deficit was likely to impede his academic performance, and recommended that the child receive as much small group instruction as possible. The boy was described as having trouble focusing on relevant details, and organizing his efforts. The Yale evaluators suggested that a behavioral program focus upon increasing the child's compliance with homework requirements. The evaluator's report was not made available to the CSE until early 1994.
On April 21, 1993, the CSE met with petitioner to discuss the child's educational program and placement for the seventh grade, during the 1993-94 school year. The CSE indicated its preference for placement of the child in a self-contained special education class with a 12:1+1 child to adult ratio, but deferred making a specific recommendation until petitioner could visit two 12:1+1 classes, both of which were in respondent's middle school. Although petitioner raised the issue of whether the child should be placed in a private school, the CSE concluded that such a placement would not be the least restrictive environment for the child. Petitioner also requested that an extended school day program be provided to the child to assist him in developing his organizational skills, and that respondent provide an extended school year program, i.e., instruction during the Summer of 1993. The CSE did not recommend either an extended school day, or extended school year for the child.
The CSE reconvened on June 25, 1993, to complete the child's IEP for the 1993-94 school year. The record reveals that the CSE had received the results of the child's latest performance on individually and group administered achievement tests. On an individually administered reading achievement test, he had obtained a grade equivalent score of 2.8. On the group administered CTBS, he reportedly achieved grade equivalent scores of 2.4 in language mechanics, 3.4 in language expression, and 2.5 in spelling. On the individually administered Key Math Test, the boy achieved grade equivalent scores of 5.0 in basic concepts, 4.9 in mathematical operation, and 5.1 in mathematical applications. The CSE recommended that the child be enrolled in respondent's own 12:1+1 self-contained special education class in the middle school for the seventh grade during the 1993-94 school year. It again recommended that testing modifications be used with the child. The CSE also recommended that the child receive counseling in a small group, once per week. The child's IEP indicated that the child was immature, had low self-esteem, and did not have consistently appropriate reactions. He was also described as a "loner", who preferred adult attention to that of his peers, and as being very much involved with his own thoughts. The IEP included annual goals for improving the child's reading, writing and mathematics skills, in addition to annual counseling goals for improving the child's self-confidence and his social skills. Although the CSE failed to indicate on the child's IEP the extent to which the child would participate in regular education programs (cf. 8 NYCRR 200.4 [c][iv]), the record reveals that the child was mainstreamed for music, art, and physical education during the 1993-94 school year.
Petitioner unilaterally enrolled the child in the Gow School, which is a private college preparatory school located in South Wales, New York, for instruction during the Summer of 1993. At the hearing in this proceeding, petitioner acknowledged that the child's placement in a private school near Buffalo had been beneficial in easing the conflict between the child and his father. However, she asserted that he had been enrolled in the Gow School to remediate his deficient reading and writing skills. The Gow School uses what it refers to as the reconstructive language approach to teach phonetics. At the end of the summer, the child's reconstructive language teacher reported that the child's reading was still slow, but had improved. While at the Gow School, the boy reportedly received a grade equivalent score of 4.8 in oral reading. The child's mathematics laboratory teacher reported that manipulatives and math games had been used to improve the child's basic mathematics skills. The child also took an organization and study skills course. The teacher of that course reported that the child had remained on task, and that his work had improved during the course.
In his 12:1+1 special education class, the child began with third and fourth grade level reading materials. He received daily assignments in skill booklets, and used a cloze reading format and other specialized techniques to identify and locate factual information in printed text. In addition, the boy received phonetics instruction using the Glass Analysis technique to learn "cluster" sounds. He also received computer managed instruction in reading, mathematics, and language arts (grammar and usage). His special education teacher testified that he concentrated upon developing the child's ability to write sentences and paragraphs in language arts, and that the child had been taught to use a specific technique to edit his written work, which was prepared on a word processor. The child received instruction in mathematics from the teacher, as well as from the computer assisted program. The teacher testified that the child's mathematics instruction was at the fifth grade level. In addition to reading, language arts and mathematics, the child received instruction in social studies from the special education teacher.
At petitioner's request, the child was independently evaluated by a psychologist and a psychiatrist in the Mount Sinai Medical Center in New York City, in October, 1993. The psychologist noted that the child was distractible during structured and unstructured tasks, and that he at times required verbal prompting. She reported that the child had achieved a verbal IQ score of 91, a performance IQ score of 95, and a full-scale score of 92. The psychologist described the child as performing best in the cognitive areas of acquired information, reasoning, and conceptual and perceptual ability, and less well in areas which were highly correlated with "working memory", distractibility, and processing speed. His performance on tasks which were extremely sensitive to distractibility, or on perceptual tasks which reflected processing speed was described as being in the borderline or deficit range. The boy's visual motor integration skills were in the average range. On academic achievement tests, the child achieved standard scores of 86 in word attack skills, 53 in reading comprehension, 68 in spelling, 74 in numerical skills, and 86 in mathematical reasoning. She reported that the child had difficulty learning verbal information which was presented without a context, and that his attention deficits were manifested on tasks which required sustained attention and visual scanning. He also displayed deficits in performing simple motor tasks. The psychologist noted that the child's present set of difficulties had developed after years of functioning in regular education classes (as the child's parent's had preferred), despite having severe deficits in attention, processing speed, verbal learning, reading, writing, and numerical operations. She recommended that the boy be placed in a private school for children with learning disabilities, and opined that placing the child in a self-contained class in a public school would not address the delay which he had in academic achievement. She also recommended that the child be referred to a learning specialist, and that he continue to receive medication for his ADD.
The psychiatric evaluation at Mount Sinai revealed that the child had a younger sibling who had been diagnosed as having an attention deficit hyperactivity disorder (ADHD) and a borderline IQ. It also described the turbulent relationship which had existed between the child and his father, who reportedly suffered from mood swings and had hit his children. The Mount Sinai psychiatrist reported that the child had demonstrated appropriate affect, judgment, and insight, and did not have any psychiatric diagnosis, other than ADHD (the child had been previously diagnosed as having ADD). The psychiatrist suggested that the child receive counseling.
On February 4, 1994, the CSE met to review the results of the child's evaluation at Mount Sinai. Petitioner challenged the appropriateness of the child's IEP annual goals. She also asked for an extended school day program for the child, and the assignment of a tutor trained in the Orton-Gillingham method of phonetics. The CSE revised the child's IEP goals, but did not include the results of the Mount Sinai evaluation in the IEP description of the child's present levels of performance. The boy's IEP was amended by the addition of an annual goal to improve the child's listening skills and the revision of a short-term instructional objective to provide for the use of a multi-sensory approach in developing his sight-vocabulary. The CSE also recommended that the child be evaluated by an occupational therapist.
The child's triennial psychological evaluation was completed by respondent's school psychologist on March 2, 1994. The school psychologist noted that the child had some difficulty comprehending the test directions which were given to him. He reported that the child had achieved grade equivalent scores of 5.9 in basic reading, 7.1 in reading comprehension, 5.5 in mathematical reasoning, 5.9 in numerical operations, 6.7 in listening comprehension, 11.5 in oral expression, 4.0 in spelling, and 3.0 in written expression. The achievement test which the school psychologist used was correlated to an IQ test, thereby permitting the school psychologist to compare the child's "predicted scores" (based on his IQ) with his actual scores on the achievement test. He found that there was a significant discrepancy between the child's predicted and actual scores with respect to spelling and writing, but not with respect to reading. The school psychologist reported that the child was more focused and self-confident then he had been in the past, which he attributed, in part, to the child's placement in respondent's self-contained special education class.
An occupational therapist who evaluated the child on March 15, 1994 reported that the boy displayed some delay in the development of his gross and fine motor skills, as well as his visual motor integration skills. Although the evaluator opined that the child did not require occupational therapy, she recommended that the child participate in extracurricular activities to improve his balance and fine motor skills. She suggested that the legibility of the child's handwriting could be improved with the use of a specific handwriting program.
The CSE conducted its annual review of the child on April 28, 1994. At the meeting, the child's special education teacher reported that the child had achieved growth in all academic areas, and that he was learning to deal with his frustration in a more positive way. The CSE reportedly discussed the child's social and emotional needs, as well as his academic needs. Petitioner asked the CSE to consider placing the child in a private school to address his reading and writing deficits. The CSE recommended that the child remain in his self-contained special education class in respondent's middle school for the eighth grade during the 1994-95 school year. It also recommended that the child continue to receive small group counseling once per week. The IEP which the CSE prepared indicated that the child would be mainstreamed for "special" subjects, as he had been during the 1993-94 school year. The results of both the October, 1993 Mount Sinai evaluation and the March, 1994 triennial evaluation were described in the child's IEP for the 1994-95 school year. New annual goals for improving the child's organizational/study, typing and word-processing, and handwriting skills were included in the IEP. The IEP also provided that the child's special education teacher would summarize the child's progress, in weekly telephone conversations with petitioner.
At the conclusion of the April 18, 1994 CSE meeting, petitioner handed a written request for an impartial hearing to the CSE chairperson. In her letter, petitioner indicated that she sought to obtain reimbursement for the cost of the child's program at the Gow School in the Summer of 1993, and an out-of-district placement for the boy during the 1994-95 school year. The hearing in this proceeding began on June 9, 1994. Petitioner was assisted at the hearing by a lay advocate. The relief sought by petitioner included a determination by the hearing officer that the child's proposed IEP for the 1994-95 school year was inadequate, and an order directing respondent to place the child as a day student in the Kildonan School, a private school for learning disabled children which has not been approved by the State Education Department as a school for children with disabilities. Petitioner's advocate questioned the hearing officer about his authority to order respondent to place the child in an unapproved private school. The hearing officer expressed doubt about his power to order such a placement. At petitioner's request, the hearing was adjourned to afford petitioner an opportunity to commence a Federal court action challenging an alleged policy of the State Education Department with regard to the placement of children in unapproved private schools. In July, 1994, petitioner commenced an action against respondent and the State Education Department in the United States District Court for the Northern District of New York. In an order dated July 22, 1994, the Court denied petitioner's request for relief in advance of the hearing in this proceeding.
Petitioner unilaterally enrolled her son in the Gow School for its program during the Summer of 1994. Thereafter, she chose to continue the child's enrollment in the Gow School for the 1994-95 school year. The record indicates that the child received financial aid in the amount of $10,000 from the Gow School. Petitioner and her husband were financially responsible for the balance of the private school's fee in the amount of $11,850.
In a letter to the hearing officer, dated October 24, 1994, petitioner's advocate requested that the hearing be resumed, and advised the hearing officer that petitioner was seeking reimbursement for the cost of the child's placement in, and transportation to, the Gow School during the 1994-95 school year, the cost of his program there during the Summer of 1994, and the cost of tutoring and counseling services which they had obtained for him. The hearing resumed on December 1, 1994, and it ended on May 5, 1995.
In his decision which was rendered on July 26, 1995, the hearing officer found that there was no evidence in the record of procedural violations by respondent, as had been alleged by petitioner, in the preparation of the child's IEP. He further found that petitioner had been appropriately advised of meetings which were held by the CSE and had been given an opportunity to meaningfully participate in the development of the child's IEP. With respect to the appropriateness of the educational program and placement which the CSE had recommended for the 1994-95 school year, the hearing officer found that respondent had met its obligation under Federal and State law to offer the child a free appropriate education in the least restrictive environment, and that his IEP for the 1994-95 school year was adequate. He further found that the educational program of the Gow School was inappropriate for the child during the 1994-95 school year because it was not the least restrictive environment for him. Nevertheless, the hearing officer held that petitioner should be reimbursed for the cost of the child's summer program at the Gow School in 1993 and 1994, because he found that the CSE's deferral to the wishes of the child's parents not to classify the child in 1985, and not to place the child in a 12:1+1 class for at least two years after the CSE believed that class to be appropriate, had greatly delayed the child's educational development and advancement. The hearing officer remanded the matter to the CSE to recommend an appropriate placement for the child during the 1995-96 school year.
Petitioner asserts that there is a threshold issue to be determined about the ability of the State Review Officer to render an impartial decision with regard to the placement of a child in an unapproved private school. She claims that the State Education Department does not abide by the decision of the United State Supreme Court in Florence County School District v. Carter by Carter, U.S. , 114 S. Ct. 361 ). The Carter decision was an extension of the earlier decision in School Committee in the Town of Burlington v. Department of Education Massachusetts, 471 U.S. 359 (1985), in which the Court held that a board of education may be required to reimburse parents for the cost of a child's educational services obtained by the parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim for reimbursement. Prior to the Carter decision, parents in New York could not obtain reimbursement for tuition at an unapproved school (Tucker v. Bay Shore UFSD, 873 F. 2d 563 [2d Cir., 1989]). In Carter, the Court held that a parent could obtain reimbursement for tuition at an unapproved private school, if the private school provided the child with an appropriate education. Since the Carter decision, there have been a number of appeals to the State Review Officer in which tuition reimbursement in an unapproved school has been sought, and obtained (Application of a Child with a Disability, Appeal No. 94-20; Application of a Child with a Disability, Appeal No. 94-26; Application of a Child with a Disability, Appeal No. 95-8; Application of a Child with a Disability, Appeal No. 95-42; Application of a Child with a Disability, Appeal No. 95-61). I find that there is no merit to petitioner's threshold issue.
There is one other preliminary issue to be addressed. In her petition, petitioner refers to the scheduling of the CSE's annual review of the child for the 1995-96 school year, and to the appropriateness of the IEP which was developed for the 1995-96 school year. However, those are matters which are beyond the scope of this proceeding, which concerns the child's placement for the 1994-95 school year. Although the hearing officer denied petitioner's purported request for "prospective approval" of the Gow School, I find that he was merely indicating that the issue of the child's placement after the 1994-95 school year was not a matter which he could determine.
The board of education bears the burden of demonstrating the appropriateness of the program recommended by its 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, the board of education must show that the recommended program is reasonably calculated to allow the child to receive educational benefits (Bd. of Ed. Hendrick Hudson CSE v. Rowley, 458 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]). An appropriate program begins with an IEP which accurately reflects the results of the evaluation 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 instructional objectives which are related to the child's educational deficits (Application of a Child with a Disability, Appeal No. 93-9; Application of a Child with a Disability, Appeal No. 93-12).
The child's IEP for the 1994-95 school year included a description of the results of the October, 1993 Mount Sinai IQ test and the March, 1994 triennial evaluation achievement test. Those tests were the most recently administered tests of their respective kind. The achievement test results were used to meet the Federal and State regulatory requirement that each child's IEP include a statement of the child's present levels of educational performance (34 CFR 300.346 [a]; 8 NYCRR 200.4 [c]). However, the grade equivalent scores of 5.9 in basic reading, 7.1 in reading comprehension, and 6.3 in total reading were significantly higher than other reported reading scores for the child, and were not corroborated by the testimony of the child's teacher for the 1993-94 school year. Indeed, the record contains very little information about the child's progress in reading during the 1993-94 school year.
The child's teacher testified that the child worked for approximately 10 minutes per day with an aide and a computer assisted program to improve his reading comprehension, and for a comparable amount of time with the teacher in developing his phonetic/word attack skills. At the hearing, the Mount Sinai psychologist opined that it was extremely unlikely that the discrepancy between the 3.0 grade equivalent score for reading decoding which the child had obtained in October 1993 and the reading scores which he had achieved in March, 1994 could be explained by the fact that he had received specialized reading instruction in respondent's 12:1+1 class. I must also note that the child's 1993-94 IEP did not include any annual goal or short-term instructional objective to improve the child's reading decoding skills. While the prior IEP did include objectives to improve the boy's sight word vocabulary and reading comprehension skills, the record does not reveal the extent to which the child achieved those objectives.
Accurate information about a child's present levels of educational performance is essential for a CSE to determine the efficacy of the educational services which have been provided, and the appropriateness of the services to be provided during the next school year and the annual goals and the short-term objectives for the next year. The child's 1994-95 IEP indicated that he had made "steady progress" during the 1993-94 school year. However, that statement is inadequate to establish the extent of the child's achievement of goals and objectives. In this instance, the CSE apparently did not include a short-term objective relating to the child's reading comprehension in his 1994-95 IEP because of the March, 1994 achievement test results. However, there is no other evidence in the record which indicates that the child's previously well documented deficit in reading comprehension had been eliminated. I find that the child's 1994-95 IEP did not accurately reflect the child's present level of performance in reading.
I also find that the child's 1994-95 IEP annual goals, such as "improve reading skills" and "improve math skills", were not sufficiently specific to provide the child's teachers with direction about the CSE's expectations (cf. Application of a Child with a Disability, Appeal No. 94-24). The two short-term objectives for reading were: "To improve sight word vocabulary utilizing a multi-sensory approach, across all activities," and "[To] improve decoding skills by approximately one grade level, across all activities, over 10 month instructional period." I find that those objectives did little to inform the teachers of the CSE's expectations. Although the decoding objective referred to an anticipated rate of progress, there was no beginning point from which the child's progress could be measured. Short-term instructional objectives must be "measurable, intermediate steps between the present levels of educational performance ... and the annual goals" (34 CFR Part 300, Appendix C, Question 39). I find that the child's short-term instructional objectives under various IEP annual goals lacked sufficient precision to permit an assessment of the child's progress during the period for which the IEP was prepared.
The central issue is whether the special education services which the CSE recommended were appropriate to address the child's special education needs. The record reveals that the child had significant deficits in his reading, writing and spelling skills, and that his educational performance had been hampered by deficits in his ability to attend, i.e., to remain focused upon the tasks which he has been asked to perform. In addition, the child lacked self-esteem, and had been described as a "loner" in his interactions with others. The CSE recommended that the child's needs be addressed by his continued placement in respondent's middle school 12:1+1 special education class for instruction in all subjects, except "special subjects," together with small group counseling once per week. The recommended program was identical to that which the CSE had previously recommended, and the child had received, in the 93-94 school year. However, his 1994-95 IEP included a number of additional annual goals and objectives.
In determining the appropriateness of the recommended educational services, I have examined the record to ascertain the nature of the instruction which he received in the special education class during the 1993-94 school year, and the evidence of his progress during that school year. The child's special education teacher testified that he used the Glass Analysis methodology with the child to improve his reading decoding skills. However, that specialized instruction was provided for a minimal amount of time each day (approximately 10 minutes), while the Mount Sinai psychologist testified that the child needed to have this technique used with him many times during the school day, in order to derive benefit from its use. The remainder of the child's reading program appeared to involve reinforcement activities, such as the brief use of a computer assisted instructional program for reading comprehension. With regard to mathematics, the record reveals that the child had difficulty with concepts and applying concepts to solve word problems. The teacher testified that he taught the child in a group of approximately three children, and that he used both oral and visual methods to instruct the child. The teacher testified that he worked on the child's 1993-94 IEP writing objective of improving the child's ability to write complete sentences and paragraphs, and that the child had been required to keep a journal, write a business letter, and complete other writing assignments. He further testified that the child worked with an aide on a computer assisted program to improve his grammar and punctuation. The aide also worked with the child on his spelling. Although the voluminous record in this proceeding includes at least one description of the educational program which the boy received in 1993-94 and would presumably have received in the 1994-95 school year, there is a dearth of information in the record about the child's actual achievement during the 1993-94. I have considered the results of the CTBS which was administered in April, 1994, as well as the special education teacher's testimony, but I find that neither affords a basis for concluding that the child made adequate academic progress, or even achieved any of his IEP goals or objectives, during that school year. I further find that there is virtually no information in the record about how the child's attention deficit was addressed in the 1993-94 school year, or how it would be addressed in the 1994-95 school year. Upon the record before me, I find that respondent has failed to meet its burden of proof with regard to the appropriateness of the educational program which its CSE had recommended for the 1994-95 school year.
Petitioner bears the burden of proof concerning the appropriateness of the Gow School's educational program for her child (Application of a Child with a Disability, Appeal No. 94-29; Application of the Bd. of Ed. of the Monroe-Woodbury CSD, Appeal No. 94-34). She must show that the educational services provided by the private school address the child's identified special education needs. Petitioner replies primarily upon information provided by the Headmaster of the Gow School, who did not testify, but was interviewed by petitioner's advocate and respondent's attorney. The advocate and the attorney then entered into a stipulation about the nature of the testimony which the Headmaster would have given.
The Gow School had 143 boys in grades seven through twelve, all of whom were of average or above average cognitive ability and were reportedly dyslexic. According to the Headmaster, dyslexia is a specific problem in processing language. The Headmaster indicated that the Gow School provided instruction six days per week for a total of 180 school days. He further indicated that petitioner's child was enrolled in a reconstructive language class, which provided intensive alphabetic phonetics instruction which was geared toward older students. According to the Headmaster, all of the Gow School teachers had been trained in reconstructive language and multi-sensory mathematics, and were expected to employ the reconstructive language technique in their respective subjects. He defined that latter as the teaching of mathematics through the use of manipulatives. In addition to reconstructive language, the child was enrolled in eighth grade English, mathematics, history, earth science, and health classes. The petitioner's child had a study hall each morning, and a mandatory two-hour evening study hall, staffed by at least four teachers of the school. Students who fall behind in their work or who needed additional help were required to attend additional study halls on Saturday and Sunday afternoons. The child required to attend a daily "tutorial" session with one of his teachers. Petitioner's child was also provided with counseling by a psychologist in the private school's "life skills" course.
The Headmaster of the Gow School also indicated that he had observed the child change from a sullen, withdrawn boy into a relaxed and confident student while at the Gow School. The record also includes the child's academic reports for the first three marking periods of the 1994-95 school year. By the end of the third period, the child had reportedly memorized 115 phonic sounds, and a vocabulary list of 100 words. His teacher reported that the words were used to reenforce the learning of spelling rules and to practice the application of the phonetic sounds. The child received passing grades in each subject during each marking period. On the Stanford-Binet Test of Academic Skills which was administered to him on April 25, 1995, the child reportedly achieved grade equivalent scores of 5.7 in reading comprehension, 5.8 in total reading, 4.9 in number concepts, 5.5 in mathematical computation, and 3.8 in spelling. Upon the record before me, I find that the child made at least some progress in an environment which addressed his academic needs, provided a very structured approach to learning to deal with his attentional and organizational deficits. It also addressed his social/emotional needs, to the extent that he appears to have acquired more self-esteem, and to have established at least a small circle of friends at the Gow School.
Respondent argues that equitable considerations do not support petitioner's claim for tuition reimbursement because petitioner allegedly "failed to accept" the CSE's recommendations in prior years which aggravated the child's educational deficits. Respondent asserts that the CSE acceded to petitioner's wishes that the child not be classified as a child with a disability when he was in kindergarten, and that he not be placed in a special education class in the fifth grade. Although a CSE should work cooperatively with parents, respondent's CSE is required to make recommendations which are appropriate for the child to ensure that he receives a free appropriate public education under Federal and State law. Respondent cannot disavow its CSE's previous recommendations for the purpose of avoiding financial liability for the cost of his education during the 1994-95 school year under the criteria set forth in the Burlington and Carter decisions. I have considered respondent's other arguments with respect to equitable considerations, and find them to be without merit. Therefore, I find that equitable considerations support petitioner's claim for tuition reimbursement.
Petitioner also seeks reimbursement for "related costs" and transportation to and from the Gow School during the 1994-95 school year. She has not defined the term "related costs." In her revised statement of issues and relief sought (Hearing Officer Exhibit 5A), petitioner indicated that she would seek reimbursement for the cost of counseling and tutoring which she had obtained for the child. However, the record does not include sufficient information about the services which she obtained for the child to afford a basis for finding whether they were appropriate, or whether the costs which she incurred were reasonable. Petitioner did introduce evidence of certain expenditures made by her child at the Gow School's bookstore during the 1994-95 school year. Although some of the boy's expenditures appeared to be for books which were required for his courses, there were other expenditures for school supplies, which were clearly not reimbursable by respondent. At the hearing, petitioner acknowledged that she had not asked respondent to provide textbooks to the child pursuant to Section 701 of the Education Law, and there is insufficient information in the record to determine whether some, or all, of the child's books could have been provided to the child if a request had been made. I must therefore deny petitioner's request for reimbursement of related costs.
Petitioner offered no evidence at the hearing of her expenditures for the child's transportation. In a post-hearing memorandum of law, petitioner's advocate summarized petitioner's transportation expenditures for the 1994-95 school year. Petitioner sought reimbursement for seven round trips of 900 miles, at $.29 per mile, for a total of $1,827.00. The relevant State regulation provides for State reimbursement to school districts for the transportation costs of children placed in residential schools for transportation at the start and the end of the school year, plus no more than three additional trips to and from school, except for such additional trips as may be necessary during periods when residential care is not provided (8 NYCRR 200.12). Since petitioner did not offer proof of the need for more than three trips during the school year in addition to the trips at the beginning and end of the school year, I find that her recovery for transportation costs must be limited to the number of trips specified in the regulation.
THE APPEAL IS SUSTAINED.
IT IS ORDERED that the decision of the hearing officer to the extent that it held that the program recommended by the 1994-95 school year was appropriate and that petitioner was not entitled to tuition reimbursement is annulled; and,
IT IS FURTHER ORDERED that respondent shall reimburse petitioner for her expenditures for the child's tuition at the Gow School from September, 1994 through May, 1995, upon presentation by petitioner of proof her expenditures for tuition to respondent.
IT IS FURTHER ORDERED that respondent shall reimburse petitioner for her transportation expenditures, to the extent indicated in this decision.