Application of a CHILD WITH A DISABILITY, by her parents, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the City School District of the City of Rochester
Western New York Advocacy Center for the Developmentally Disabled, Inc., Roger G. Nellist, Esq., of counsel,
Louis N. Kash, Esq., attorney for respondent, Donald T. Schmitt, Esq., of counsel
Petitioners appeal from a decision of an impartial hearing officer which found that the individualized education program (IEP) which respondent's committee on special education (CSE) prepared for petitioners' daughter was inappropriate, but which denied petitioners' request for an order requiring respondent to provide consultant teacher and related services to the child at the parochial school in which petitioners placed her. In its answer to the petition, respondent has cross-appealed from the hearing officer's determination that the CSE failed to carry out all of its duties when it conducted its annual review of the child on April 10, 1996. The appeal must be sustained in part. The cross-appeal must be sustained in part.
Petitioner's child, who is seven years old, was born six weeks prematurely. She has Down Syndrome, and has experienced general developmental delays. The child began receiving special education services in a BOCES early intervention program in January, 1991. Her special education services included speech/language therapy, occupational therapy, and the services of a special education teacher. For the 1993-94 school year, the child was classified by respondent's committee on preschool special education (CPSE) as mentally retarded. Upon the CPSE's recommendation, the child was placed in a 12:1 BOCES special education class, with the related services of speech/language therapy, physical therapy, and occupational therapy. The CPSE also recommended that she receive an audiological evaluation. The child was classified as a preschool child with a disability for the 1994-95 school year, during which she received special education itinerant teacher services, speech/language therapy, and occupational therapy in the Stepping Stones Learning Center, a private preschool program which had been selected by petitioners. The child's special education services which were provided by the BOCES were reportedly given to her in her classroom. She reportedly interacted well with her peers, and pre-readiness skills were beginning to emerge during the 1994-95 school year.
As she aged out of the jurisdiction of the CPSE, petitioners' daughter was referred to respondent's CSE, which classified the child as mentally retarded on April 5, 1995. The CSE recommended that the child be placed in an "inclusion" kindergarten program for the 1995-96 school year, with two hours of consultant teacher services per week, speech/language therapy five times per week, and occupational therapy twice per week. However, petitioners chose to have the child remain in the preschool program at Stepping Stones Learning Center, where she received the recommended special education services from the BOCES during the 1995-96 school year.
In March, 1996, the child's speech/language therapist reported that her speech was highly unintelligible without a referent, and that she had achieved standard scores of 48 for receptive vocabulary and 78 for expressive vocabulary. She further reported that on the Hawaii Early Learning Profile (HELP), the child's cognitive skill development level was in the 24-29 month range, with some scattered skills up to 36 months. At the time of the report, the child was 68 months old. The child's consultant teacher reported that the girl related well to peers and adults in her classroom. The child could attend to (i.e., remain focused upon) teacher directed tasks for up to ten minutes. She could match and label colors, recognize her name in print, and was interested in shapes and counting by rote. The consultant teacher estimated that the child was functioning at approximately the same level as she had one year previously. The girl adjusted quickly to program changes, and worked well with her related service providers. Her consultant teacher opined that the child could successfully participate in a full-day regular education kindergarten program, with supportive services, during the 1996-97 school year.
At a meeting on April 10, 1996, respondent's CSE recommended that the child attend regular kindergarten class, and that she receive consultant teacher services for five hours per week, speech/language therapy five times per week, and occupational therapy and physical therapy twice per week. The CSE did not specify where the child would receive her regular education, which it was not required to do (34 CFR Part 300, Appendix C, Question 47). In the IEP which it prepared for the child, the CSE did not explicitly indicate whether the child was to receive direct or indirect consultant teacher services (see 8 NYCRR 200.1 ), but it did indicate that "collaborative consultation" would be provided. At the hearing in this proceeding, the CSE chairperson testified that the term "collaborative consultation" referred to a special education teacher consulting with the child's regular education teacher. The chairperson further testified that the CSE had not specified whether the child's related services were to be "push-in" (i.e. provided in the child's classroom), or "pull-out" (i.e., provided to the child in a separate location). The chairperson indicated that it was within the discretion of each related service provider to determine the nature of the services.
The child's mother, who attended the April 10, 1996 CSE annual review did not object to the services which the CSE had recommended for her child, but she asked that those services be provided to the girl at the Christ the King School, in which petitioners intended to enroll the child for kindergarten during the 1996-97 school year. The Christ the King School is reportedly part of the Catholic Diocese of Rochester, and is the school which this child's older sister attends. The child's mother was apparently advised that her child would be bused by respondent to the public school which was nearest to the Christ the King School to receive the services which the CSE had recommended. In a letter dated April 25, 1996, the girl's mother requested that an impartial hearing be held because she did not want her child to leave her private school during the school day in order to receive the special education services which the CSE had recommended.
Petitioners were notified that a hearing had been scheduled for September 16, 1996 (cf. 34 CFR 300.512 [a]). By consent, the hearing was adjourned. Petitioners placed their daughter in the Christ the King School, where she did not receive any special education services from respondent. The hearing was held on October 22 and 23, 1996. There was no disagreement about the child's need for the recommended special education services. At the hearing, respondent's representatives acknowledged that respondent had provided consultant teacher and related services to the child through the BOCES at the site of the Stepping Stones program, which was non-sectarian. The CSE chairperson testified that it was respondent's policy not to provide special education services to students on the site of the parochial schools which they attended. In any event, respondent took the position that it had no legal obligation to provide the recommended special education services at the site of the private school. Petitioners contended that it would be disruptive and too time-consuming for their daughter to receive her special education services in respondent's School 39. They argued that respondent was required to provide those services to her at the Christ the King School.
In her decision which was dated December 13, 1996, the impartial hearing officer noted that there was no dispute about the facts leading up to the April 10, 1996 CSE meeting, and that the CSE at that meeting had basically recommended that the child receive the same special education program which she had been provided during the 1995-96 school year (the amount of consultant teacher services was increased and physical therapy was added for the 1996-97 school year). However, the hearing officer further noted that the nature of the child's placement would change in the 1996-97 school year because she would be enrolled in a class of 24 children at Christ the King, which was approximately twice the size of her Stepping Stones class during the 1995-96 school year. She found that the CSE had in fact recommended a change in the child's educational program from an inclusion class to a regular education class, but the CSE had failed to indicate its intention to change the girl's educational program in its minutes, or the girl's IEP. The hearing officer further found that respondent had violated 8 NYCRR 200.4 (c)(viii)[now (ix)] by failing to identify the child's recommended placement in her IEP, and had failed to demonstrate that the CSE had consulted with a representative of the Christ the King School pursuant to 34 CFR 76.652. In addition, the hearing officer found that respondent had not demonstrated that it could have provided appropriate special education services to the girl in one of respondent's schools because respondent had not adduced evidence of the needs and abilities of the children with whom she would have been taught by the consultant teacher or received services from the related service providers.
The hearing officer held that there was no constitutional barrier to providing the child with special education services on the premises of the Christ the King School, but noted that the issue of whether school districts must provide special education to children who were unilaterally placed by their parents in private schools on the grounds of those schools was then pending before the United States Supreme Court. She held that respondent was only required to provide children like petitioners' daughter with a "genuine opportunity for equitable participation" in respondent's special education program and services. However, the hearing officer found that respondent had not offered petitioners' daughter a genuine opportunity to participate in its special education program because the CSE's recommendation was procedurally flawed. She remanded the matter to the CSE to recommend an appropriate placement for the girl.
Petitioners challenge the hearing officer's decision to the extent that it denied their request that respondent be ordered to provide the services listed on their child's IEP at the Christ the King School. They argue that respondent's decision not to provide their child's special education services at the private school which she attends was arbitrary, and was not based upon the child's needs. Petitioners assert that providing those services to the child at a separate location (respondent's School 39) would not meet the child's needs. Respondent asserts that when the CSE made its recommendation it was not permitted as a matter of law to provide special education services to a child at the site of a parochial school. It cross-appeals from the hearing officer's determination that the CSE failed to act in accordance with the applicable Federal and State law in making its recommendation for the child's educational program for the 1996-97 school year.
I shall first consider respondent's cross-appeal. Federal and State law require that boards of education make special education and related services available to children with disabilities who have been placed by their parents in private schools (20 USC 1413 [a][A]; Section 3602-c of the Education Law). To satisfy its obligation to those children, a board of education must not only offer to provide appropriate public placements for the children, but must also offer to provide them with appropriate special education and related services if their parents choose to keep the children in private schools (34 CFR 300.452; Application of a Child with a Handicapping Condition, Appeal No. 91-12).
In this instance, there was no dispute that petitioners' daughter needed to receive the services which respondent's CSE had recommended for her. The CSE's recommendation must be set forth in an IEP (8 NYCRR 200.4 [c]), and the IEP must be developed by a multi-disciplinary team in a meeting to which the child's parents have been invited to attend (34 CFR 300.344-345; 8 NYCRR 200.4 [c]). Respondent's CSE prepared an IEP at a meeting which the child's mother attended. The IEP (Exhibit 8) adequately described the child's special education needs, and included annual goals and short-term objectives which were appropriate for the child.
In her decision, the hearing officer observed that it was unclear whether the CSE intended to change the child's program for the 1996-97 school year, notwithstanding the CSE chairperson's testimony that the CSE intended to recommend that the child continue to receive the services which she had received in the 1995-96 school year. The hearing officer was apparently persuaded by the fact that the word "inclusion" had been used in the CSE meeting minutes (Exhibit P-15) and the child's IEP for the 1995-96 school year (Exhibit P-17), but that word did not appear in the minutes (Exhibit 6) or IEP (Exhibit 8) for the 1996-97 school year. I note that the minutes for the CSE meeting on April 10, 1996 indicated that the child's program was to "continue", and I find that the CSE did in fact recommend the same kind of services for both the 1995-96 and 1996-97 school years. Consequently, I find that the child's educational program did not change (see 8 NYCRR 200.1 [e]). I also disagree with the hearing officer's finding that respondent was legally obliged to identify the specific regular education kindergarten in which the child was to be placed. The hearing officer's reliance upon the provisions of 8 NYCRR 200.4 (c)(2)(ix), which requires the CSE to indicate the "recommended placement", was misplaced. The CSE recommended that the child be placed in respondent's regular education program. It was not required to identify a specific class within the regular education program.
The hearing officer also found that the CSE had failed to indicate what type of consultant teacher services would be provided to the child. Consultant teacher services may be "direct" or "indirect". They are defined by regulation as follows:
"(1) Direct consultant teacher services means specially designed individualized or group instruction provided by a certified special education teacher pursuant to subdivision (ll) of this section, to a student with a disability to aid such student to benefit from the student's regular education classes.
(2) Indirect consultant teacher services means consultation provided by a certified special education teacher pursuant to subdivision (ll) of this section to regular education teachers to assist them in adjusting the learning environment and/or modifying their instructional methods to meet the individual needs of a student with a disability who attends their classes" (8 NYCRR 200.1 ).
State regulation requires a CSE to recommend consultant teacher services "to meet specific needs of the child" (8 NYCRR 200.6 [d]). When a CSE recommends that a child receive consultant teacher services, the CSE must indicate in the child's IEP "the regular education classes in which the student will receive consultant teacher services" (8 NYCRR 200.4 [c][iv][c]). Although State regulation may not explicitly require the CSE to indicate on a child's IEP whether the consultant teacher services will be direct or indirect, I must note that it does provide that each child requiring consultant teacher services " ... shall receive direct and/or indirect services consistent with the student's IEP ... " (8 NYCRR 200.6 [d]). I know of no way in which this requirement could be meaningfully enforced unless the child's IEP indicated whether the child's consultant teacher services were to be direct, indirect, or a combination of both. I concur with the hearing officer's determination that the CSE should have specified the nature of the child's consultant teacher services.
In this instance, the primary issue is where should the consultant teacher services be provided. The parties urge me to find that it would be feasible and appropriate for the child to receive the recommended consultant teacher services at the respective sites which they favor, despite the fact that the record, even after the hearing, does not provide adequate information about the nature of the services which were to be provided to the child. At the hearing, respondent's CSE chairperson testified that the child's consultant teacher would be expected to help the child achieve her IEP goals of using age-appropriate self-help skills when dressing, and developing her pre-academic skills, as well as her social interaction skills. He further testified that the consultant teacher's services could be either direct or indirect, and that the child could receive direct consultant teacher services in a resource room at School 39. Respondent offered no evidence regarding how the child would achieve her goals in one of its resource rooms, or whether she would be suitably grouped for instructional purposes while in a resource room. The CSE chairperson also testified that the child's related services, e.g., speech/language therapy, occupational therapy, and physical therapy could be either push-in or pull-out services. The school administrators who also testified about providing those services focused upon the availability of staff to provide those services at School 39, and the lower cost of providing those services there, rather than at Christ the King School. The hearing officer found, and I concur, that respondent failed to demonstrate the appropriateness of providing the recommended special education services at School 39. Therefore, respondent's cross-appeal can be sustained only to the extent which I have previously indicated.
In their appeal, petitioners argue that respondent failed to provide them with the requisite notice of the CSE's recommendation because the CSE's notice of recommendation (Exhibit P-32) failed to describe the program and placement options which the CSE had considered, and the CSE's rationale for rejecting the options which were not selected (see 34 CFR 300.505 [a]; 8 NYCRR 200.5 [a][c]). Respondent argues that its notice of recommendation was consistent with the terms of the consent decree in J.G. v. Rochester City School District (81-173T, U.S. D.C. W.D. N.Y.). While respondent may well be correct, I must point out that it was its responsibility to offer proof in support of its argument. The single exhibit relating to the J.G. litigation which is in the record before me does not address the issue of the adequacy of the notice of recommendation used by respondent. Therefore, I find that the notice of recommendation which was given to petitioners was inadequate.
Petitioners contend that the hearing officer erred by not ordering respondent to provide their child with her special education services at the Christ the King School. I disagree with them. As both parties undoubtedly know, the extent to which a board of education may be required to provide special education services to a child who has been unilaterally placed by his or her parents in a private school has been extensively litigated, with varying results (see K.R. et al. v. Anderson Com. Sch. Corp., 81 F. 3d 673 [7th Cir., 1996]; Russman v. Sobol, 85 F. 3d 1050 [2d Cir., 1996]; Fowler v. Unified Sch. Dist. 259, 107 F. 3d 797 [10th Cir., 1997]; Cefalu v. East Baton Range Parish Sch. Bd., 103 F. 3d 393 [5th Cir., 1997]). On June 27, 1997, the United States Supreme Court granted writs of certiorari in K.R. et al., Russman, and Fowler (65 U.S. L.W. 3860). In each instance, the Court vacated the Circuit Court judgment, and remanded the matters to their respective Circuit Courts of Appeal, "for further consideration in light of the Individuals with Disabilities Education Act Amendments of 1997".
As amended on June 4, 1997, the relevant portion of the Individuals with Disabilities Education Act reads as follows:
" (10) Children in private schools
(A) Children enrolled in private schools by their parents
(I) In general
To the extent consistent with the number and location of children with disabilities in the State who are enrolled by their parents in private elementary and secondary schools, provision is made for the participation of those children in the program assisted or carried out under this part by providing for such children special education and related services in accordance with the following requirements, unless the Secretary has arranged for services to those children under subsection (f):
(I) Amounts expended for the provision of those services by a local educational agency shall be equal to a proportionate amount of Federal funds made available under this part.
(II) Such services may be provided to children with disabilities on the premises of private, including parochial schools, to the extent consistent with law".
Although the amended statute makes it clear that a board of education may provide special education services to children with disabilities on the premises of the private schools in which they have been enrolled by their parents, it does not appear to impose an absolute obligation to do so. Indeed, the amended statute appears to limit the obligation to provide any services to a proportionate amount of Federal funds which the board of education has received under IDEA. The record which is before me does not afford any basis for making a determination of that nature. In the absence of that information, as well as a clear understanding about how the recommended services were intended to be actually implemented (direct or indirect, push-in or pull-out), I concur with the hearing officer's determination to remand the matter to the CSE.
I have considered petitioners' other contentions, which I find to be without merit.
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
THE CROSS-APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that the decision of the hearing officer is annulled only to the extent that it found that respondent's CSE may have intended to change the child's educational program, and that the CSE should have identified a specific regular education kindergarten class for the child.
 Although not defined by statute or regulation, the term "inclusion" is generally recognized by educators to mean the placement of a child with a disability in a regular education class with the child's age-appropriate peers. The child with a disability receives appropriate special education services to support his or her placement in the regular education class, while working towards the achievement of his or her IEP annual goals (Application of a Child with a Disability, Appeal No. 94-17). Inclusion should not be confused with mainstreaming, which is the placement of a child with a disability in a regular education class with the expectation that he or she will meet the curriculum requirements for the class, with supplementary aids and services.
 The Federal statute was amended on June 4, 1997, as will be discussed in infra.