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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 Liverpool Central School District


Dague and Sprancmanis, Esqs., attorneys for petitioners, Raymond J. Dague, Esq., of counsel

O'Hara and O'Connell, Esqs., attorneys for respondent, Dennis O'Hara, Esq., of counsel


        Petitioners appeal from the decision by an impartial hearing officer which held that respondent was not obligated to provide the services of a teacher of the deaf and a speech/language therapist to petitioners' daughter on the site of the girl's private school, and could continue to provide those services to her in one of its own schools. The appeal must be dismissed.

        Petitioners' daughter, who is ten years old, contracted meningitis when she was approximately three months old. As a result of that illness, the child has a profound bilateral sensorineural hearing loss. She received her first cochlear implant at the age of four, and began receiving therapy with an emphasis of using her residual hearing and her speech as the primary means of communication at the age of four and one half.

        A private speech/language pathologist who evaluated the child in March, 1997 reported that the child's speech intelligibility was generally at the level of fifty percent or less for an unfamiliar listener (Joint Exhibit 5). The speech/language pathologist further reported that the child exhibited extreme oral/motor hyposensitivity, as manifested by her tendency to swallow food without chewing sufficiently. In June, 1997, an "auditory-verbal therapist" (the term does not describe one of the licensed professions in New York) reported that the child accurately processed verbal language during therapy, even without visual cues (Joint Exhibit 6). She also reported that the child had achieved a score of 83 per cent on the Speech Intelligibility Evaluation, which is a test of single words. The child's classification by respondent's committee on special education (CSE) as deaf (see 8 NYCRR 200.1 [mm][2]) is not in dispute.

        Petitioners enrolled their daughter in the Faith Heritage School for kindergarten during the 1993-94 school year. The private school, which is sectarian, has about 150 children enrolled in grades kindergarten through 12. At the hearing in this proceeding, the child's mother testified that she and her husband had enrolled the child in the Faith Heritage School to obtain an education which was based upon biblical principles. The child's two siblings also attend the same private school.

        The child was enrolled in a regular education kindergarten, but petitioners employed a teacher of the deaf to work with the child in class once per week. The teacher of the deaf continued to assist the child on a less frequent basis during the following school year. The child has remained in a regular education program at the Faith Heritage School, and was in the fourth grade during the 1997-98 school year.

        During the 1996-97 school year, the Liverpool Central School District provided the child with the part-time services of a teacher of the deaf, a speech/language therapist, an auditory-verbal therapist, and a full-time interpreter for the deaf. The interpreter for the deaf and the auditory-verbal therapist provided their services to the child at the Faith Heritage School. The child was transported by respondent to its Willow Field Elementary School, which is approximately 18 miles away from the Faith Heritage School to receive the services of a teacher of the deaf and the speech/language therapist.

        The child received letter grades of A for reading, penmanship, music, art, and physical education, as well as numerical grades of 90 or better for English, spelling, social studies, and science on her third grade report card at the Faith Heritage School (Joint Exhibit 15). Those marks were consistent with the ones which she had received while in the second grade during the preceding school year (Joint Exhibit 18). On the Statewide Pupil Evaluation Program (PEP) tests (8 NYCRR 100.3 [b][2]), she achieved scores which were at the 71st and 75th percentiles for third grade reading and third grade mathematics, respectively, during the 1996-97 school year (Joint Exhibit 16). Both scores were above the Statewide reference point. Pupils who receive scores below that point must receive remedial instruction (8 NYCRR 100.3 [b][3]). The child's teacher of the deaf testified that she had modified the PEP tests by highlighting key vocabulary words, and eliminating one of the four possible answers to multiple choice questions. She further testified that the child had answered each test question.

        On June 11, 1997, respondent's CSE conducted its annual review of the child. The CSE considered written reports by the child's teacher of the deaf, speech/language therapist, auditory-verbal therapist, and her third grade teacher in the Faith Heritage School, as well as the report by the independent speech/language pathologist. The teacher of the deaf noted that the child's previously failed cochlear implant had been replaced in October, 1996, which forced the child to adjust to hearing new sounds again. The teacher of the deaf indicated that the child had had a difficult year, but had done well. She also noted that the child did not use sign language during the 1996-97 school year, although a sign language interpreter had been assigned to assist the child. The teacher of the deaf recommended that the interpreter be replaced by a note take who would input data into a classroom computer with a television monitor. The CSE chairperson testified that the written and oral reports given to the CSE by those who had worked with the child indicated that she was making progress with the services she received.

        The CSE recommended that for the 1997-98 school year, the child receive two hours of direct service by the teacher of the deaf five times per week, plus one hour per week of indirect service from that teacher. It also recommended that the child receive 30 minutes of direct speech/language therapy five times per week, and 30 minutes of indirect speech/language therapy once per week. The CSE recommended that the auditory-verbal therapist provide a total of 25 hours of therapy to the child during the 1997-98 school year. The CSE also recommended that the child's interpreter for the deaf be replaced with a full-time note taker, and that a computer and television monitor be purchased to implement the teacher of the deaf's recommendation for the note taker.

        Petitioners, who attended the CSE's annual review with their attorney, did not object to the services recommended to the CSE, nor did they object to their child's individualized education program (IEP) annual goals or short-term instructional objectives. However, they did object to requiring their child to leave the Faith Heritage School for a portion of the school day to receive the services from her teacher of the deaf and speech/language therapist. They requested that an impartial hearing be held.

        The hearing in this proceeding began on October 14, 1997, and it ended on October 21, 1997. Petitioners' attorney acknowledged that petitioners did not challenge the child's classification, or the nature and amount of the special education services which the CSE had recommended that she receive during the 1997-98 school year. He indicated that the issue to be determined was the appropriateness of having the child travel to respondent's Willow Field Elementary School each day to be taught by the teacher of the deaf and to receive speech/language therapy. Respondent contended that it had offered to provide a free appropriate public education (FAPE) to the child, and that it was not legally obligated to provide any special education service to her on the site of her private school.

        In his decision which was rendered on December 4, 1997, the impartial hearing officer found that the child was making satisfactory progress in school, as evidenced by her report cards, performance on the PEP tests, and achievement of many of her IEP goals. He further found that respondent had established the appropriateness of the child's IEP, although he expressed the belief that her daily schedule was excessive and tiring for her, and provided little opportunity for peer social activity. The hearing officer held that there was no legal requirement that the two services be provided on the site of the private school. He also found that petitioners had not provided any evidence to establish that the private school had an acoustically appropriate room available in which the teacher of the deaf and the speech/language therapist could provide their respective services. He rejected petitioners' contention that it would be no more costly to respondent to provide the two services at the private school than to transport the child to the Willow Field School. The hearing officer offered several suggestions for rearranging the child's school day to enhance her opportunity for socialization with peers, and he also suggested that respondent review the qualifications of the child's note taker.

        Although two of petitioners' witnesses at the hearing expressed doubt about some of the child's IEP short-term instructional objectives, petitioners assert in their petition that they are in agreement with their child's IEP. Consequently, I will not review the adequacy of the child's IEP. Petitioners argue that the only issue to be determined is where the services of the child's teacher of the deaf and speech/language therapist should have been provided during the 1997-98 school year. They contend that respondent's policy of not providing those services at the site of their child's school has denied the child a free appropriate public education in contravention of the Individuals with Disabilities Education Act (IDEA), and that such policy discriminates against them for exercising their freedom of religion. Respondent argues that the hearing officer's decision was consistent with both Federal and State law, neither of which requires it to provide special education services to a child at a private school if respondent has offered a FAPE to the child. It contends that it has met its obligation to provide an appropriate educational program.

        A board of education which has offered a FAPE to a child is not obligated to pay for the cost of the child's regular or special education and related services at a private school in which the child has been unilaterally placed by his or her parents (20 USC 1412 [a][10][C][i]). However, 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 1412 [a][10][A]; Section 3602-c of the Education Law). The relevant portion of IDEA, as amended on June 4, 1997, reads as follows:

(10) Children in private school

(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".

        The amended statute authorizes a board of education to provide special education services to children on the premises of the private school in which they have been enrolled by their parents, but it does not impose an absolute obligation to do so. Instead, it is within the board of education's discretion to determine whether to provide such services on the private school's premises (Russman v. Mills, 150 F. 3d 219 [2d Cir., 1998]; K.R. by M.R. v. Anderson Community School Corp, 125 F. 3d 1017 [7th Cir., 1997]; Foley v. Special Sch. Dist. of St. Louis County, ______ F. 3d ______ [8th Cir., 1998], 28 IDELR 874). Moreover, the amended statute makes it clear that a board of education's obligation is limited to expending a proportionate share of the Federal money which it received under IDEA on behalf of the children with disabilities who have been voluntarily enrolled in private schools (Russman v. Millssupra; Application of a Child with a Disability, Appeal No. 97-5). At the hearing, respondent submitted evidence that during the 1997-98 school year it would spend $418.56 per pupil in Federal funds, while spending $70,635 for services for petitioners' daughter.

        I have considered petitioners' claim that respondent failed to offer a FAPE to their child for the 1997-98 school year because the child would have to come to the Willow Field Elementary School to be taught by respondent's teacher of the deaf and to receive speech/language therapy. I must note that the CSE did not specify whether the services of the teacher of the deaf and the speech/language therapist should be provided on a "push-in" basis in the girl's classroom, or on a "pull-out" basis, i.e., removal from class (cf. Application of a Child with a Disability, Appeal No. 97-5). However, the teacher of the deaf testified that it was difficult to instruct a deaf child in a regular education class while other activities are going on because of the noise level, and that this child's IEP goals could not have been achieved with push-in service. The record reveals that the child attended the Faith Heritage School from shortly after 8:00 a.m. until 12:30 p.m. each school day. During that period of time, she received instruction in most of her core academic fourth grade subjects, as well as some of her special subjects. At 12:30 p.m., she was transported by respondent to the Willow Field Elementary School, where from 1:00 p.m. to 4:00 p.m. she received two hours of instruction in reading and social studies from respondent's teacher of the deaf, and one hour of speech/language therapy. Her classmates in the Faith Heritage School were also being instructed in reading and social studies while she was at the Willow Field Elementary School.

        Petitioners asserted at the hearing that their daughter was laboring to make educational progress, but was falling behind her classmates. Although petitioners' witnesses expressed their belief that it would be preferable to have the services of the teacher of the deaf and the speech/language therapist delivered to the child at the Faith Heritage School, I find that they did not provide evidence that the services offered by respondent were inappropriate, or that the child was not educationally benefiting from those services. The child has academic weaknesses, such as deficits in her vocabulary and speaking skills. However, those weaknesses are a manifestation of her disability, and do not afford a basis for me to find that respondent failed to offer a FAPE to the child. Consequently, I must dismiss their claim that respondent has violated the IDEA.

        Section 3602-c of the New York State Education Law requires boards of education to furnish certain services, including special education, to children attending local private schools, upon the written request of their parents. The CSE must determine what would be appropriate services for each child with a disability who attends a private school. The statute requires boards of education to transport the children from their private schools to the public schools in accordance with the needs of each child. The statute does not require school districts to provide special education services to private school children at their private schools (Board of Education of the Monroe-Woodbury Central School District v. Wieder, 72 NY 2d 174 [1988]).

        Although petitioners now argue that respondent's failure to provide the services of the teacher of the deaf and the speech/language therapist at the Faith Heritage School places an unconstitutional burden upon the free exercise of their religion in violation of the Free Exercise Clause of the First Amendment to the U.S. Constitution, I must note that the issue was not identified in their opening statement at the hearing, nor argued in their post-hearing memorandum of law to the hearing officer. The child's mother testified that petitioners desired to have their daughter be educated in a religious school. However, I find that on the limited record which is before me, there is no basis for concluding that respondent's actions have violated petitioners' First Amendment right to exercise their religion (Goodall v. Stafford Co. Sch. Bd., 60 F. 3d 168 [4th Cir., 1995]; K.R. by M.R. v. Anderson Community School Corp.supra).


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