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. Michael D. Hess, Corporation Counsel, attorney for respondent, John F. Wirenius, Esq., of counsel
Petitioner appeals from the decision of an impartial hearing officer which upheld the recommendation by respondent's committee on special education (CSE) to declassify petitioner's son as of January 11, 1997, and which denied petitioner's request for an order requiring respondent to pay for the cost of her son's tuition at his private school for the remainder of the 1996-97 school year. The appeal must be dismissed.
Petitioner's son is fourteen years old. He was reportedly medically diagnosed as having a pervasive developmental disorder at the age of two. After early training at the Child Development Center of the Jewish Board of Family and Children's Services, the boy entered kindergarten at the Stephen Gaynor School in 1990. He remained in the Stephen Gaynor School through the 1996-97 school year, during which he was in the sixth grade. The Stephen Gaynor School has not been approved by the State Education Department to provide instruction to children with disabilities.
The child was initially classified as autistic by the CSE. However, he has reportedly been classified as learning disabled since 1991 (Exhibit B). In June, 1996, a private psychologist evaluated petitioner's son. She reported that he had achieved a verbal IQ score of 107, a performance IQ score of 64, and a full scale IQ score of 84. On the Kaufman Test of Educational Achievement, the child achieved standard scores of 127 for reading decoding, 117 for reading comprehension, 107 for mathematical computation, 118 for mathematical applications, and 132 for spelling. On the Woodcock-Johnson Achievement Battery-Revised, the child achieved grade equivalent scores of 6.9 for science, 12.4 for social studies, and 11.4 for the humanities. The psychologist reported that the child's social skills were relatively weak and his visual-spatial organization skills were particularly weak. She indicated that the child's rote auditory memory skills were stronger than his incidental visual memory. The psychologist described the boy as a dependent young man with weak problem solving skills.
Respondent reportedly failed to offer the child a timely placement for the 1993-94 school year. In November, 1993, the U.S. Supreme Court held that a board of education could be required to pay for educational services obtained for a child at an unapproved private school 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 (Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 ). Petitioner initiated a due process proceeding in 1995. In March, 1995, the hearing officer ordered the board of education to reimburse petitioner for the cost of her son's tuition at the Stephen Gaynor School retroactive to November, 1993. Respondent also failed to make a timely recommendation for the child's placement during the 1995-96 school year. The parties reached a settlement on that issue prior to this proceeding. On or about March 6, 1996, petitioner contracted with the Stephen Gaynor School for her son's tuition during the 1996-97 school year.
This proceeding was initiated by a request for an impartial hearing on or about September 13, 1996. Although the hearing was scheduled to begin on November 14, 1996, it was adjourned by consent, and it did not take place until March 13, 1997. At the hearing, respondent's representative conceded that the CSE should have conducted its annual review of the child for purposes of recommending a placement for the 1996-97 school year by no later than August 15, 1996. However, the CSE did not conduct its annual review until January 10, 1997. In the interim, the CSE completed the child's triennial evaluation.
One of respondent's educational evaluators tested petitioner's son in October, 1996. On the Woodcock Johnson Psycho-Educational Battery Test of Cognitive Ability, the boy achieved percentile scores of 96 for picture vocabulary, 67 for oral comprehension, 86 for comprehension-knowledge, 98 for listening comprehension, and 38 for verbal analogies. On the Woodcock-Johnson Tests of Achievement, the boy received percentile scores of 98 for letter-word identification, 92 for passage comprehension, 90 for mathematical calculation, 90 for mathematical applications, 57 for science, and 95 for social studies. The educational evaluator noted that the child used a manuscript style to write and that his letters were poorly formed. However, she reported that his writing was readable (with difficulty) in context. The child's sentences were generally syntactically appropriate, and his writing was rich in content.
On November 19, 1996, the boy was evaluated by one of respondent's speech/language therapists. She reported that he evidenced no sign of an impairment in communication which would be consistent with the requirement for a medical diagnosis of autism (see Exhibit 16). The child's speech articulation was intelligible, although he substituted some letters. His auditory processing skills ranged from those of a child of the age of 5 years and 4 months to above his actual age expectancy. His auditory memory was reported to be above average. On the Clinical Evaluation of Language Fundamentals - III, the child achieved standard scores of 120 for receptive language skills, and 122 for expressive language skills, indicating that his receptive and expressive language skills were well above average. On the Word Test Adolescent, the boy achieved a standard score of 131. The speech/language therapist reported that the child evidenced appropriate pragmatic language skills, and she recommended that he not receive speech/language therapy.
On November 9, 1996, the child was evaluated by one of respondent's school psychologists, who reviewed the child's prior evaluations, and administered certain projective tests. She reported that the child spoke rather maturely and was well related, but his expressive language was sometimes awkward because his responses had an obsessive quality. The school psychologist noted that the child was distractible at times, and tended to lose his train of thought in the middle of an explanation. She also noted that he rocked minimally throughout his evaluation, and speculated that it was the child's way of coping with anxiety. Projective testing revealed that the child was anxious about his future. The school psychologist reported that interpersonal relationships were difficult for the boy, who had trouble attributing feelings to people. When stressed, the child tended to withdraw entirely from the situation. She reported that the child had difficulty handling frustration, and that he was well aware of his strengths and weaknesses. The sociologist reported that the child felt very vulnerable, and she noted that his vulnerability could cause increased impulsivity and distractibility as he became increasingly concerned about where he would attend school in the future.
On a CSE medical documentation form which he completed on November 6, 1996, the child's physician indicated that the child had "autism (high functioning) and static encephalopathy." However the physician did not indicate what part or parts of the child's brain or spinal cord were diseased. A neurologist reported on November 7, 1996 that the results of the child's general physical examination and an EEG examination were unremarkable. He indicated that the child had reasonably good coordination and that his gait was normal, except that he had some difficulties with a tandem gait. Although he alluded to the child having an expressive language deficit as well as an attention deficit disorder, the neurologist gave no basis for his statement about either condition.
On November 15, 1996, the child was seen by one of respondent's psychiatrists, who noted that the child was taking Ritalin and Prozac to control certain autistic-like behaviors. The psychiatrist diagnosed the child as having a pervasive developmental disorder, residual, not otherwise specified. He indicated that the child had problems with his visual-motor skills, "pragmatics", and social understanding. The psychiatrist opined that the child's problem with social understanding was "especially handicapping". He described the child as being bright, but vulnerable. He indicated that the child required a small, special education class and school with a structured setting with untaxing social interaction.
On December 6, 1996, petitioner's son was observed in his class at the Stephen Gaynor School by one of respondent's school psychologists. She reported that the child was very attentive and involved during the class lesson, and that he interacted well with both the instructor and his classmates. As part of the class, the child was required to work on a project with a partner, which he reportedly did enthusiastically. The school psychologist also reported that the child's teacher had indicated that the child had a strong fund of general information, but his thinking was very concrete and literal. He reportedly had difficulty perceiving cause and effect situations and drawing inferences. The teacher further indicated that the child "misread" social situations because of his inability to pick up subtle cues. According to the school psychologist, the child's teacher felt that he might require a special education setting.
On January 10, 1997, the CSE met with petitioner, who testified at the hearing that her attorney had advised her that her claim for reimbursement for the 1996-1997 school year had been settled prior to the CSE meeting. According to petitioner, the purpose of the CSE meeting was to recommend her son's placement for the 1997-98 school year. At the CSE meeting, respondent's psychiatrist reportedly indicated that the child had some signs of a pervasive developmental disorder, but those characteristics did not fully exist. The psychiatrist did not testify at the hearing in this proceeding. The school psychologist member of the CSE testified that upon review of all of the child's records, the results of his evaluations, and the classroom observation, the CSE determined that the child did not have an educational disability. She noted that despite the large discrepancy between the child's IQ subtest results, he was nevertheless functioning at an academic level which was consistent with his IQ scores. The CSE recommended that the child no longer be classified as a child with a disability. Its notice of recommendation was sent to petitioner on or about January 16, 1997.
As noted above, the hearing in this proceeding was held on March 14, 1997. The school psychologist member of the CSE testified that the child could have succeeded in a regular education class, without special education services. Respondent's educational evaluator testified that the child's achievement test performance was far above what his weaker IQ scores would have suggested. However, she also testified that she would not necessarily have said that he should be placed in a regular education class. The speech/language therapist who had evaluated the child and had attended the CSE meeting testified that she had agreed with the CSE's recommendation. The Assistant Director of the Stephen Gaynor School testified that the child was a very high functioning autistic child, but was extremely fragile. She explained that the child manifested his disability in the classroom by requiring a lot of reassurance and by his impulsivity. She further testified that the child had poor motor skills, and used a word processor in his classroom for all written work. The Assistant Director opined that the child required a small group instruction, and needed to sit directly next to his teacher. She opined that the child could not possibly function in a regular education class of 29-30 children.
In her decision which was rendered on June 25, 1997, the hearing officer found that the child no longer met the definition of a child with a disability. She noted that the boy might have some "residual social and emotional issues," but she found that those issues were not currently interfering with his academic progress. The hearing officer further found that the child was no longer eligible to receive special education services, and denied petitioner's request for an order directing respondent to pay for the child's tuition for the remainder of the 1996-97 school year.
Petitioner contends that the CSE should have classified her son as autistic because of the medical diagnosis provided by the child's physician and the diagnosis of pervasive developmental disorder given by respondent's psychiatrist. She asserts that the child meets the criteria for the medical diagnosis of autism pursuant to the DSM-IV published by the American Psychiatric Association (Exhibit 16). Respondent asserts that its CSE took all of the relevant evidence into consideration, and that the CSE properly relied upon the advice given by its psychiatrist at the CSE meeting.
The board of education bears the burden of establishing the appropriateness of the CSE's recommendation that a child not be classified as a child with a disability (Application of a Child Suspected of Having a Disability, Appeal No. 93-18; Application of a Child Suspected of Having a Disability, Appeal No. 94-36; Application of a Child Suspected of Having a Disability, Appeal No. 94-41; Application of a Child Suspected of Having a Disability, Appeal No. 94-42). In order to be classified as a child with a disability under Federal regulation (34 CFR 300.7[a]), or its State counterpart (8 NYCRR 200.1 [mm]), a child must not only have a specific physical or mental condition, but such condition must adversely impact upon the child's performance to the extent that he or she requires special education and/or related services (Application of a Child Suspected of Having a Disability, Appeal No. 94-36; Application of a Child Suspected of Having a Disability, Appeal No. 94-42). State statute defines a child with a disability as one "…who, because of mental, physical or emotional reasons can only receive appropriate educational opportunities from a program of special education." (Section 4401  of the Education Law).
I have considered the medical diagnosis of autism which is in the record (Exhibit 16), but I find that it is not dispositive of the question whether this child meets the criteria for classification as a child with a disability. As noted by the hearing officer, the child may manifest to a mild degree certain symptoms of the medical condition of autism, but the real issue is whether those manifestations hinder his educational progress to the extent that he requires special education services. The regulatory definition of an autistic student indicates that the student must manifest "…a behaviorally defined syndrome which occurs in children of all levels of intelligence. The essential features are typically manifested prior to 30 months of age and includes severe disturbances of developmental rates and/or sequences of responses to sensory stimuli, of speech, of language, of cognitive capacities, and of the ability to relate to people, events and objects." (8 NYCRR 200.1 [mm] ).
This child appears to have some mild speech articulation difficulties, as well as some difficulty initiating and maintaining conversations with his peers. However, his interaction with adults is reported to be satisfactory. Academically, he is achieving at a rate which is commensurate with his cognitive ability. I recognize that he has never been enrolled in a public school regular education program but I must point out that the record which is before me provides virtually no information about what, if any, special education techniques have been used with him at the Stephen Gaynor School. In a letter dated January 22, 1997 (Exhibit 12), the Assistant Director of the Stephen Gaynor School asserted that the child needed small group instruction because he would focus upon the environment rather than a lesson in a large group. She further asserted that he needed a highly structured setting because he has difficulty adjusting to changes in routines, schedules and expectations. There is, however, no evidence of how the child would in fact function in the larger setting of a public school. Upon the record before me, I find that respondent's CSE appropriately recommended that the child be declassified because the record does not demonstrate that he can only receive appropriate educational opportunities from a program of special education.
State regulation requires that when a CSE determines that a child no longer needs special education services and can be placed in a regular education program on a full-time basis, the CSE must identify the declassification support services (see 8 NYCRR 100.1 [q]), if any, to be provided to the child and/or the child's teachers (8 NYCRR 200.4 [c]  [iii] [a]). Respondent's CSE failed to recommend that petitioner's son receive any declassification support services. Given this child's background, I find that it would have been appropriate for the CSE to have recommended that the child receive counseling upon his transition into a regular education program. The CSE's failure to do so compels me to conclude that respondent failed to meet its burden of proving the appropriateness of the CSE's recommendation for the boy's educational program for the period subsequent to the CSE's recommendation.
In order to obtain an award of tuition reimbursement, petitioner must show that the services which she obtained for her son at the Stephen Gaynor School were "proper under the act" [Individuals with Disabilities Education Act] (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359, at 370 ), i.e., that the private school offered an educational program which met the child's special education needs. I find that petitioner did not meet her burden of proof. As noted, there is a paucity of information in the record about the child's special education program at the Stephen Gaynor School.
THE APPEAL IS DISMISSED.