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 City School District of the City of New York
Neal H. Rosenberg, Esq., attorney for petitioner
Hon. Paul A. Crotty, Corporation Counsel, attorney for respondent, Kerri L. Jew, Esq., of counsel
Petitioner appeals from the decision of an impartial hearing officer which found that the board of education had offered an appropriate educational placement to petitioner's son for the 1996-97 school year, and which denied petitioner's claim for private school tuition reimbursement for that school year. The appeal must be sustained in part.
Petitioner's son, who is seven years old, has been classified by respondent's committee on special education (CSE) as speech impaired. In his most recent speech/language evaluation, which was completed in August, 1996, the boy was found to have normal speech skills. However, his expressive language and semantic skills were generally in the mild to moderately deficient range, while his receptive language and processing skills appeared to be adequate. The evaluator reported that the child's pragmatic language skills were very delayed, particularly with regard to initiating a conversational topic, maintaining the topic during the conversation and taking turns during the conversation. He reported that the child made extraneous remarks, and asked inappropriate questions during the evaluation. Although petitioner alludes in her petition to her son's high degree of distractibility, hyperactivity, and social withdrawal, she does not challenge the boy's classification as speech impaired.
During the 1995-96 school year, petitioner's son was enrolled in the kindergarten of the Parkside School, which is a private school. He attended the school at the board of education's expense. The child's mid-year achievement report from the Parkside School revealed that the boy knew the sound/symbol correspondence to many letters, but had not yet applied that knowledge to decoding reading words. His reading decoding and comprehension skills were reported to be at the mid-kindergarten level, as were his mathematics skills. The school reported that the child had begun to use language much more consistently with his teachers and his peers than had been the case at the beginning of the school year. However, the child continued to display delays in his language skills, with regard to his ability to retrieve words and to interact with his peers. The child's behavior in class was described as generally good, although he displayed inconsistent attention, and he reportedly became upset and angry on occasion when he did not get his way. His activity level was described as average, and he was reported to have become progressively more outgoing and social. In a separate report, the boy's speech/language therapist reported that the boy had deficits in his word retrieval skills, and his ability to organize lengthy utterances. She noted that the boy's auditory processing sills were negatively affected by his limited attention to auditory stimuli. Petitioner's son was also receiving occupational therapy. His occupational therapist reported in January, 1996 that the child could copy most uppercase letters, but would continue to work on activities to improve his pen/pencil control, as well as his motor planning skills.
On May 7, 1996, the CSE met with petitioner and the child's teacher to develop the child's individualized education program (IEP) for the 1996-97 school year. The CSE recommended that the child remain in the Parkside School, and that he receive individual speech/language therapy once per week, speech/language therapy in a group of no more than three children twice per week, and occupational therapy in a group of no more than two children once per week. The boy's IEP indicated that although the CSE had recommended a class with a child to adult ratio of 12:1 + 1, the recommended class had been "capped" at 8 children. It should be noted that the CSE lacked its required parent member (see Section 4402  [b]  of the Education Law). A notice of the CSE's recommendation was reportedly sent to petitioner on or about May 9, 1996.
In a letter dated July 30, 1996, petitioner asked to have her son's case reviewed. A school social worker interviewed petitioner on August 13, 1996, to update the child's social history. One of respondent's educational evaluators tested the boy on the same date. The educational evaluator noted that the boy had difficulty sitting still, and that he had some difficulty remembering what the questions were while doing word problems. Nevertheless, his listening comprehension skills were found to be above grade expectancy. The boy achieved grade equivalent scores of K.7 for letter-word identification, 1.2 for quantitative concepts, and K.1 for applied problems, on subtests of the Woodcock-Johnson Tests of Achievement. He also achieved a grade equivalent score of K.7 for dictation, but had no difficulty demonstrating his writing readiness skills. On subtests measuring his knowledge of science, the humanities, and social studies, petitioner's son achieved grade equivalent scores of 1.9, K.9, and K.1, respectively. The evaluator suggested that the boy could be placed in a regular education first grade class. A speech/language therapist who evaluated the child for the CSE recommended that the boy receive individual speech/language therapy once per week, and speech/language therapy in a group of no more than three children once per week.
The CSE reconvened on August 29, 1996. It reportedly deferred making a new recommendation for the child, pending an observation of the boy in his classroom in the Parkside School in September, 1996. In a letter of the same date to the CSE chairperson, petitioner informed the chairperson that her son would be attending the "Weekday School" in the Riverside Church. She indicated that she expected respondent would provide speech/language therapy and occupational therapy to her son at the Weekday School, but she did not refer to having respondent pay for the child's tuition in that school.
On September 13, 1996, the boy was observed in the Weekday School, by one of respondent's educational evaluators, who reported that the child played and interacted well with four other children during gym period. The child was enrolled in a "bridge" class of eighteen kindergarten/first grade children, with a teacher and an assistant teacher. The boy also had the assistance of an individual aide. The observer reported that petitioner's son answered his teacher's questions appropriately.
On September 18, 1996, petitioner met with the CSE. I note that although respondent was free to designate the teacher member of the CSE (see 34 CFR 300.344 [Note 1 (c)]), there is no evidence of what, if any, steps respondent took to ensure that a representative of the private school attended the meeting (34 CFR 300.349 [b]). In any event, a psychologist from the Cooke Foundation reportedly attended the September CSE meeting (Transcript, page 74). The CSE recommended that the child remain classified as speech impaired, but that he be placed in a regular education first grade class. It also recommended that he receive individual speech/language therapy twice per week, speech/language in a group of no more than three children three times per week, occupational therapy in a group of no more than two children twice per week, and counseling in a group of no more than three children once per week. The IEP which the CSE prepared for the child included annual goals for improving the child's listening, speaking, reading and writing skills, as well as separate goals for his speech/language therapy, occupational therapy, and counseling. In its written "rationale" for its recommendation (Exhibit 16), the CSE indicated that the boy had recently been placed in a regular education setting (the Weekday School), and that he would benefit from the recommended related services. A placement for the child was offered in respondent's P.S. 9 (Exhibit 17).
On an undated form provided by respondent, petitioner acknowledged receipt of the CSE's recommendation for her son's educational program, and she indicated that she would "privately fund" the boy's placement in the Weekday School (Exhibit 18). Petitioner requested that the related services which the CSE had recommended on September 18, 1996 be provided to her son. The record does not reveal when petitioner requested the hearing in this proceeding, which was held on December 13, 1996. On March 26, 1997, respondent's Impartial Hearing Office informed petitioner's attorney that the hearing officer who had conducted the hearing was unable to render a decision. The attorney was offered the options of having another hearing officer read the hearing record and render a decision, or having a de novo hearing. Petitioner's attorney selected the first option, and another hearing officer reviewed the record.
The second hearing officer rendered his decision on May 6, 1997. He noted that the record revealed that the educational program in which petitioner had enrolled her son was under the auspices of the Cooke Foundation for Special Education, but the boy was in fact enrolled in a regular education kindergarten class, with the supportive services of an aide and a consultant teacher. With regard to petitioner's request for tuition reimbursement for her son's placement in the Weekday School, the hearing officer further noted that board of education may be required to pay for educational services obtained for a child by the child's 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 (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 ).
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 CSD 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]). The hearing officer found that petitioner's son could function among his regular education peers at the first grade level, if he received an appropriate amount of support outside the classroom. He further found that the educational program which the CSE had recommended for the child, i.e., a regular education placement with related services, was appropriate to meet his needs. The hearing officer therefore held that the board of education had met its burden of proof with respect to the first of the three Burlington criteria for tuition reimbursement, and he denied petitioner's claim for that relief.
Petitioner asserts that the hearing officer's decision was not supported by the record in this proceeding. She contends that the CSE, which in May, 1996 had recommended that the child remain in a highly restrictive placement (an 8:1+1 class in the Parkside School), lacked an adequate basis in September, 1996 to recommend that the child be placed in one of the least restrictive placements available (a regular education class with supportive services). Petitioner contends that her son had significant management needs, i.e., distractibility and hyperactivity, which required that he be constantly refocused by an adult, in addition to having significant language needs, the combination of which could not be adequately addressed in the placement recommended by the CSE.
At the hearing, and again in this appeal, petitioner appears to rely upon the fact that the CSE had failed to observe the child in his classroom at the Parkside School, prior to making its recommendation that he remain in that school for the 1996-97 school year. I find that the fact that no observation was made is irrelevant for two reasons. First, there is no legal requirement that a child be observed in his classroom prior to the annual review of the child, unless the CSE contemplates making a significant change in the child's placement (see 34 CFR 104.35 [a]). Respondent's CSE did not recommend that the child's placement be significantly changed, at its annual review on May 7, 1996. Secondly, the boy was observed in his then actual placement on September 13, 1996, prior to CSE's meeting on September 18, 1996, when the CSE did recommend a significant change be made in the boy's placement. The IEP which the CSE prepared at that meeting superseded the earlier IEP for the boy, and the later IEP is the subject of this proceeding.
To ascertain whether the educational program recommended by the CSE was appropriate for the child, I have reviewed the provisions of the IEP which was prepared on September 18, 1996. An IEP must accurately reflect the results of the child's evaluations to identify the child's special education needs, establish annual goals and short-term instructional objectives which are related to the child's educational deficits, and provide for the use of appropriate special education services to address the child's special education needs (Application of a Child with a Disability, Appeal No. 93-9; Application of a Child with a Disability, Appeal No. 93-12). The boy's IEP reveals that when tested in November, 1994, the child had achieved a verbal IQ score of 85, a performance IQ score of 89, and a full scale IQ score of 86. That testing and a test of his visual motor integration skills disclosed that the boy's relative weaknesses were in his ability to express an understanding of abstract relationships, visual problem solving, graphomotor (handwriting) skills, and motor planning skills. The child's IEP also reflected the results of his speech/language evaluation in August, 1996, when he was found to have mild to moderately deficient expressive and semantic skills, as well as markedly delayed pragmatic language skills. The results of the boy's August, 1996 education evaluation were also reflected on the IEP which the CSE prepared for him.
Although the IEP accurately reflected the results of the evaluations which were performed, I note that it did not include any updated information from the Parkside School about the boy's performance during the second half of the 1995-96 school year. Respondent alleges in its answer that petitioner failed to provide that information to the CSE. However, I find that it was the CSE's responsibility to obtain that information, particularly in light of the significant change in the boy's placement which the CSE recommended. The mid-year report from the Parkside School (Exhibit 1) indicated that the child still had some significant management needs because of his inconsistent attention, occasional lack of impulse control, and withdrawal from his teachers and peers. In its description of the child's management needs, the IEP indicated that the boy required general education with related services to remediate his academic and social skills. I find that this conclusory description failed to adequately describe the child's management needs, at least some of which can be inferred from some of his annual goals and short-term objectives. Those goals and objectives indicated that the child needed to improve his ability to listen and to maintain eye contact with adults, and to participate in small group activities for as long as 20 minutes. He also needed to improve his ability to listen to and negotiate with his peers, and to participate with them even when upset or frustrated.
I find that the child's IEP goals and objectives were related to his identified special education needs. The remaining question is whether the educational services which the CSE recommended for him were sufficient to afford the child a reasonable opportunity to achieve his IEP goals and objectives. This child was placed in a small, highly structured environment during the 1995-96 school year. Although he apparently achieved some success in the Parkside School, the record does not reveal whether he had attained his IEP goals and objectives for the 1995-96 school year while attending the Parkside School. I note that at the hearing in this proceeding, Ms. Kathryn Simic, who was the child's consultant teacher during the 1996-97 school year, opined that petitioner's son no longer needed to be in a self-contained special education class, such as the Parkside School had provided. However, Ms. Simic also opined that the child was not ready for a regular education placement, without appropriate supports. She testified that petitioner's son had difficulty dealing with changes, and that he required "previewing" before being asked to do things, and lots of reinforcement after he had done things (Transcript, page 40). Ms. Simic further testified that the child would need the support of special educators, if he was placed in a regular education setting, and she opined that he could not achieve his IEP annual goals and objectives in a regular education class with a child to adult ratio of 25:1. Ms. Simic's testimony was supported by the child's individual aide in the Weekday School, Ms. Pamela Grant. Ms. Grant testified that petitioner's son required individual assistance to perform day-to-day tasks in the classroom, and to be introduced to new material. She also testified that the child did not interact with his peers without her assistance, and was likely to leave his seat and wander in the classroom, if left unattended. The testimony of neither Ms. Simic nor Ms. Grant was challenged at the hearing. Respondent appeared to rely upon its educational evaluator's report that it appeared that the child could be placed in a regular education first grade class with related services.
Respondent's CSE was obligated to place petitioner's son in the least restrictive environment in which he could successfully function. In this instance, neither party is contending that the child should have remained in the restrictive 8:1+1 class of the Parkside School for the 1996-97 school year. However, the child's IEP reveals that he continued to have special education instructional needs. For example, his IEP included annual goals for reading, writing, and listening skills. However, the CSE failed to recommend that the child receive either direct or indirect special education instruction to meet his instructional needs. As noted above, the child continued to have significant management needs in terms of maintaining his focus, and social/emotional needs in interacting with others and dealing with frustration. Although the once-per-week group counseling which the CSE had recommended for the child may have at least partially addressed his social/emotional needs, I find that respondent has failed to demonstrate how the placement recommended by its CSE would have addressed the child's instructional and management needs. Accordingly, I must annul the hearing officer's determination that respondent had met its burden of proving that it had offered the child an appropriate educational placement for the 1996-97 school year.
The child's parent bears the burden of proof with regard to the appropriateness of the services which the parent obtained for the child at the Weekday School during the 1996-97 school year (Application of a Child with a Disability, Appeal No. 94-29; Application of the Bd. of Ed. of the Monroe-Woodbury CSD, Appeal No. 93-34; Application of a Child with a Disability, Appeal No. 95-57). In order to meet that burden, the parent must show that the services were "proper under the act" [Individuals with Disabilities Education Act] (School Committee of the Town of Burlington v. Department of Education, Massachusetts, supra 370), i.e., that the private school offered an educational program which met the child's special education needs (Application of a Child with a Disability, Appeal No. 94-29). The private school need not employ certified special education teachers, nor have its own IEP for the child (Application of a Child with a Disability, Appeal No. 94-20).
During the 1996-97 school year, the child was enrolled in a kindergarten class of 18 children. In addition to the child's individual aide, there was another aide assisting the teacher. Ms. Simic testified that the boy's class was a regular education kindergarten class, but special education modifications had been made for the boy. Although she did not specify what those modifications were, she was apparently referring to the assistance which the aide provided, as well as her own services of three and one-half hours per week as the boy's consultant teacher. In a public school setting, a consultant teacher provides direct and/or indirect services, which are designed to enable a child to benefit from his or her regular education class placement (8 NYCRR 200.1 ). However, I am constrained to find that the record which is before me does not describe the services which Ms. Simic performed for this child. Consequently, I cannot ascertain the suitability of her services, in terms of this child's needs. My review of Ms. Grant's testimony leads me to conclude that she provided a useful service which was consistent with the boy's special education needs, in terms of helping him to remain on task, and to interact with others.
Petitioner also seeks reimbursement for the portion of the tuition charge which she paid to the Cooke Foundation which was in turn paid to the Weekday School. The school afforded the boy an opportunity to learn in a small class with a low child to adult ratio. However, as noted above there is virtually no evidence of what, if any, curricular modifications were made for the child, and very little evidence of his progress in that environment. Ms. Grant did testify that the child had shown improvement in his ability to sit still and remain focused, and to express himself. However, these improvements may well have been attributable to Ms. Grant's services and those of the boy's related service providers, whose services were paid for by respondent. On balance, I find that the petitioner did not demonstrate the suitability of the services which were provided by the Weekday School.
The third and final criterion for a reimbursement award is that equitable considerations must support the parent's claim. At the very least, the record must demonstrate that the parent cooperated with the CSE. Although petitioner had entered into a contract with the Cooke Foundation for her son's education during the 1996-97 school year approximately two weeks before she met with the CSE on August 29, 1996, she failed to disclose that fact to the CSE. At the hearing, petitioner testified that she had not made up her mind whether to place the boy with the Cooke Foundation at the time of the August CSE meeting. While that may well be true, I find that her failure to disclose that information is nevertheless troubling. However, it would not in my judgment support a finding that equitable considerations do not support her claim for reimbursement.
The reasonableness of the cost of the services which a parent has obtained for a child must also be considered in determining whether equitable considerations support the parent's claim for reimbursement (Florence County School District Four v. Carter by Carter, 510 U.S. 7 ). When the cost of privately obtained services is excessive, a parent's claim for reimbursement may be limited (Application of a Child with a Disability, Appeal No. 96-8). Respondent's representative at the hearing raised the issue of the cost of the services, but he failed to pursue the issue. In any event, I have determined that petitioner has prevailed only with respect to the cost of Ms. Grant's services as the child's aide. I find that there is nothing in the record which demonstrates that the sum of $9,817.50 which petitioner paid to the Cooke Foundation for Ms. Grant's services was unreasonable (Application of a Child with a Disability, Appeal No. 97-10).
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that the decision of the hearing officer is hereby annulled, and;
IT IS FURTHER ORDERED that respondent shall reimburse petitioner in the amount of $9,817.50, upon presentation by petitioner of proof of her payment of such sum to the Cooke Foundation.