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Application of the BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK for review of a determination of a hearing officer relating to the provision of educational services to a child with a disability


Hon. Michael D. Hess, Corporation Counsel, attorney for petitioner, Simon P. Gourdine, Esq., Special Assistant Corporation Counsel, and Susan J. Deedy, Esq., of counsel

Regina Skyer, Esq., attorney for respondent


      Petitioner, the Board of Education of the City School District of the City of New York, appeals from the decision of an impartial hearing officer which ordered it to reimburse respondent for the costs she incurred for resource room services for her daughter at the Shulamith School for Girls (Shulamith School), in Brooklyn, New York during the 1997-98 school year at the fee agreed upon pursuant to a stipulation between the parties. The hearing officer further ordered petitioner to provide payment to the resource room teacher, at the fee agreed upon pursuant to a stipulation between the parties, for resource room services provided to the child during the remainder of the 1997-98 school year. The appeal must be dismissed.

        Respondent’s daughter began attending the Shulamith School for preschool when she was approximately four years old. At the request of respondent, the child was not promoted from kindergarten because of academic difficulties.

        In October, 1995, the child was initially evaluated by a private speech/language pathologist. It was noted that the child demonstrated mild language processing and formulation weaknesses manifested by word retrieval deficits, slowness to respond and difficulties formulating extended narrative, and expository discourse. Language therapy was not initially recommended, but because of continued academic difficulty, the child began to receive language therapy in July, 1996. Language therapy was discontinued after four sessions because of the child’s emotional difficulties which required psychotherapy.

        In July and August, 1996, the child was seen by a private clinical psychologist for a diagnostic interview and two therapy sessions. The private clinical psychologist reported that the child had evidenced obsessive compulsive symptoms since early childhood. She indicated that the child’s obsessive slowness and perfectionism caused distress to the child and her family because of the time she devoted to homework. It was reported that the child was bothered by many unacceptable and intrusive thoughts regarding family members and peers, which led to strong feelings of guilt and caused the child anxiety in her social relationships. The clinical psychologist opined that the child’s obsessive thoughts were likely to become more distracting and interfere with her concentration at school. She recommended that the child receive behavior therapy and that her parents receive supportive counseling. The clinical psychologist opined that such services would enable the child to function more comfortably and learn to cope with her obsessive thoughts.

        On January 10, 1997, respondent had her daughter re-evaluated by the private speech/language pathologist, who reported that the child was cautious about her responses and anxious about her ability to complete tasks appropriately. The speech/language pathologist also reported that the child had maintained her attention during the tasks presented and worked carefully to completion, but that she was reluctant to accept praise and encouragement, and doubted the adequacy of her responses. On the Detroit Tests of Learning Aptitude - 3, the child demonstrated specific weaknesses in word retrieval and in the formulation of narrative sequences. She exhibited relative strength in her short-term auditory recall of words and sentences. On the Test of Problem Solving - Revised (TOPS-R), which is designed to examine the ability to verbally describe, explain, predict and reason about problems depicted in photographs, the child’s overall performance was below expected levels. While the child was able to describe and explain the problems, she had difficulty predicting outcomes, making inferences and reasoning about the situation presented. The speech/language pathologist noted that these difficulties were consistent with the child’s difficulties in processing and formulating inferred and abstract verbal information. On the Spadafore Diagnostic Reading Test, the child’s decoding for word recognition and oral paragraph reading skills were found to be at a fourth grade instructional level, while her silent reading comprehension was found to be at a second grade instructional level and her listening comprehension skills were found to be at a third grade instructional level. On the Written Language Assessment (WLA), the child’s written discourse was assessed to be in the low average range. The speech/language pathologist observed that the child’s performance anxiety and language formulation weaknesses were most evident on the WLA. The child asked numerous questions prior to initiating each task, requested reassurance repeatedly, and struggled over the flow of discourse and whether she was using the right words. It was also reported that the child’s oral narrative and expository discourse was somewhat limited. When asked to create a story based upon a picture, the child struggled with whether her ideas were appropriate. The speech/language pathologist observed that the child had continued to exhibit the same language processing and formulation weaknesses that were reported in the October, 1995 evaluation. She noted that the emergence of emotional and behavioral factors combined with the child’s language weaknesses significantly influenced the child’s overall academic performance. The speech/language pathologist recommended language-based remediation to address the child’s specific language processing and formulation weaknesses, but indicated that treatment should be coordinated with psychological counseling.

        The child was initially referred to petitioner’s committee on special education (CSE) by her mother on January 2, 1997, when she was nine years old and in the third grade for an evaluation and review because of difficulties she was experiencing in school.

        In a psychological evaluation conducted on February 18, 1997, petitioner’s school psychologist observed that the child was trembling and somewhat reluctant when accompanying her to the testing site, but that the child gradually relaxed and engaged well. The school psychologist noted that while the child was cooperative and attempted all tasks presented, she was slow to respond and often asked for direction or to have questions repeated. The school psychologist observed that as tasks became more challenging, the child became more nervous and disorganized. On the Wechsler Intelligence Scale for Children - III (WISC-III), the child achieved a verbal I.Q. score of 99, a performance I.Q. score of 91, and a full scale I.Q. score of 95, placing her in the average range of intellectual functioning. The school psychologist, however, opined that the child’s score was a minimal estimate of her potential because the child’s anxiety appeared to have affected her performance on the initial subtests. It was reported that the child performed poorly on a task which required focus and concentration. She also displayed some difficulty transitioning from one task to another. The school psychologist reported that the child’s visual motor integration skills, as measured by the Bender Visual Motor Gestalt Test, were well developed, but her designs were placed on the page with no discernable order, suggesting poor organization and planning. She observed that the child was overwhelmed by feelings that disturbed her, and she treated every situation with equal gravity. The school psychologist noted that despite feelings of tension and anxiety, the child’s task production was not hampered. The school psychologist concluded that while child’s overwhelming anxieties might interfere with optimal academic success, she was capable of achieving at or near grade level.

        In an educational evaluation conducted on February 18, 1997, the educational evaluator noted that the child had a timid appearance and was shyly mannered, but that a rapport was easily established. The educational evaluator noted that during the formal assessment, the child tended to ask questions as material became more challenging and that she appeared insecure and fearful of risking an incorrect answer. On the Woodcock Johnson Psychological Educational Battery, Form A (Woodcock-Johnson), the child achieved a grade equivalent score of 5.4 on letter-word identification and 5.6 on passage comprehension. The educational evaluator opined that the child’s strength in reading should allow her to achieve success in many related curriculum areas. The child’s written expression was deemed to be slightly delayed due to capitalization and punctuation errors, but her grammar and organization of thought were adequate. In arithmetic, the child achieved grade equivalent scores of 4.0 for calculations and 3.3 for applied problems on the Woodcock-Johnson. The educational evaluator reported that the child displayed anxious behavior and insecure feelings about her arithmetic skills. She noted that the child displayed a sense of tentativeness because she had a tendency to request that questions be repeated, and that she avoided placing herself at risk of failure by not continuing with tasks. The educational evaluator opined that such tendencies could restrict the child’s growth and development of arithmetic skills in the future.

        In a social history based upon an interview with the child’s mother, the social worker reported that the child was described as having "low stamina" as a baby, and had always been a poor eater. The child began receiving allergy shots at approximately three years of age, which reportedly, has helped her condition. Respondent reported that her daughter had been diagnosed with obsessive compulsive disorder (OCD), and was extremely sensitive to any treatment.

        In a letter dated March 7, 1997, the child’s psychiatrist reported that the child had been diagnosed as having OCD. He indicated that over-responsibility, unwarranted guilt, "scrupulosity", intrusive thoughts, compulsive reassurance seeking and perfectionism are some of characteristics of that disorder. The child’s psychiatrist further indicated that the disorder impacted the child’s functioning during the school day by distracting her and causing her anxiety. He explained that when the child obsessed about something, she was unable to attend to a lesson or an assignment. The child’s psychiatrist indicated that the disorder also impacted the child’s educational performance because she continually doubted herself. He explained that when the child was unsure of an answer she would spend an excessive amount of time on the problem, become anxious would not be able to complete the assignment. Additionally, she would ask the teacher the same question several times to reassure herself that she understood what was being asked. The child’s psychiatrist indicated that the child required highly specialized counseling with an individual experienced with OCD and the effect it has on school performance in order to fully benefit from her school program.

        In a progress report prepared in the spring of 1997, the child’s teacher indicated that the child had experienced difficulties in many academic areas during the year, that she had difficulty understanding directions, and that her ability to work independently was limited. She indicated that the child had been receiving resource room services on a daily basis and that such support was crucial to help her function and benefit from her regular class placement. The child’s teacher indicated that without resource room assistance, the child would be failing mathematics, science and social studies. The child’s resource room teacher, in a letter dated June 2, 1997 described the child’s difficulties in school, and indicated the importance of having her continue to receive resource room services to enable her to succeed in a mainstream educational setting. In an addendum to the child’s class report card, also dated June 2, 1997, the school's assistant principal indicated that without the resource room services, the child would have received an "F" in science and social studies and a "C-" in mathematics.

        Petitioner did not conduct an observation of the student in her current educational setting as part of its initial evaluation of her, as required by Section 200.4 (b)(4)(viii) of the Regulations of the Commissioner of Education.

        The CSE met on June 3, 1997 and recommended that the child be classified as other health impaired. The child’s classification is not in dispute. The CSE further recommended that the child be placed in the regular education program, and that she receive resource room services five days per week, for one period per day. The CSE also recommended that the child receive individual counseling and individual speech/language therapy. However, the CSE recommended that the child’s placement be deferred until the beginning of the 1997-98 school year. A final notice of recommendation indicating that the child would receive resource room services and related services at respondent's Frederick Watchel School on Elm Avenue in Brooklyn, New York (PS 199), was sent to respondent on July 17, July 28, and August 14, 1997. On August 14, 1997, respondent, through her attorney, requested an impartial hearing. The attorney indicated that respondent agreed with the recommended services, but disagreed with the location of the services. The child was enrolled in the Shulamith School, at respondent's expense, for the 1997-98 school year. The record reveals that the Shulamith School is a sectarian school.

        The hearing was held on August 21, September 23, and October 30, 1997. Prior to the hearing, the parties entered into a stipulation. Pursuant to the stipulation, petitioner issued a "Nickerson" letter (See Jose P. et al. v. Ambach et al. [79 C 270, U.S. D.C. E.D.N.Y., 1982]) to respondent to obtain resource room services from an approved provider for her daughter at the rate of $29.98 per day. Petitioner also agreed to issue a related services authorization for speech/language therapy and counseling services. Payment for those services is not at issue in this proceeding.

        The hearing officer rendered her decision on February 9, 1998. While agreeing with petitioner that a board of education which has offered a free appropriate public education (FAPE) to a child is not required to provide services to that child on the site of the private school which the child attends, the hearing officer found that petitioner had not offered a FAPE, as evidenced by its issuance of a Nickerson letter. She further found that petitioner acted in an arbitrary and capricious manner in denying the use of a Nickerson letter for services at the Shulamith School with an approved provider, because the child would be unable to benefit from her educational program if she were forced to travel from the private school to the public school to receive resource room services. Accordingly, the hearing officer ordered petitioner to reimburse respondent for resource room services provided to the child at the Shulamith School for which respondent had already expended funds. Additionally, the hearing officer ordered petitioner to pay the resource room teacher for services provided during the remainder of the 1997-98 school year.

        Petitioner appeals from the hearing officer’s decision on a number of grounds. It claims that the hearing officer exceeded the scope of her authority in her findings regarding the Nickerson letter. Petitioner also challenges the hearing officer’s conclusion that the child was not capable of benefiting from her education at a location other than the Shulamith School. Petitioner further claims that the Individuals With Disabilities Education Act (20 USC 1400 et seq.) does not impose an obligation on school district to expend non-Federal funds to students voluntarily enrolled in private schools, and that because a FAPE was offered to the child at a public school, it does not have a responsibility to provide services to the child at private school .

        Petitioner claims that the hearing officer’s findings with respect to the Nickerson letter should be annulled because they were beyond the scope of the hearing, were not supported by the evidence, and were not within her jurisdiction. Pursuant to the stipulation in Jose P., parents are permitted to enroll their children, at public expense, in appropriate programs conducted at non-public schools which have been approved by the Commissioner of Education pursuant to New York State Education Law Article 89, if they have requested special education services and have not received a placement recommendation within 60 days of referral for an evaluation. The stipulation further provides that parents of students with disabilities who have been recommended for resource room services may obtain those services at public expense under certain conditions. Although the parties in this proceeding are not in complete agreement on the terms of the stipulation they entered into, the record is clear that petitioner agreed to issue a Nickerson letter to respondent to obtain resource room services for her daughter. The fact that the Shulamith School has not been approved by the Commissioner of Education to provide special education services pursuant to Article 89 of the Education Law is not dispositive of the matter. Public funding must be provided for resource room services if the provider of those services holds the appropriate State teaching certificate. At the hearing in this proceeding, the child's resource room teacher at the Shulamith School testified that she was a certified special education teacher and had previously been paid by petitioner to tutor children (Transcript, page 120). Therefore, I find that respondent was entitled to obtain private resource room services for her daughter, at petitioner’s expense, pursuant to the Nickerson letter which it gave to respondent.

        The next question is whether respondent’s right to obtain publicly funded resource room services for her daughter was limited by the Establishment Clause of the First Amendment to the United States Constitution to services in schools and facilities which were nonsectarian. I find that there was no such limitation (Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1 [1993]; Russman v. Mills, 150 F.3d 219 [2d Cir., 1998], 28 IDELR 612).

        Although petitioner also alluded to its policy of not providing special education services to children on the site of the sectarian schools which they attend, I must note that the Individuals with Disabilities Education Act and Article 89 of the Education Law require that local CSEs make their determinations based upon the individual needs of children. In this instance, there is good reason to believe that it would not be appropriate to require the child to travel to P.S. 199 to obtain resource room services, given the unique nature of her disability. I agree with the hearing officer’s finding that petitioner had failed to refute the testimony by respondent’s witnesses that her daughter would not benefit from educational services which were provided at an alternative site.

        I have considered petitioner’s other claims, which I find to be without merit.


Topical Index

District Appeal
Educational PlacementResource Room
Nickerson Letter/José P.
Preliminary MattersScope of Hearing
ReliefReimbursement (Tuition, Private Services)