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Application of a CHILD WITH A DISABILITY, by her 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 for the City of New York


Neal H. Rosenberg, Esq., attorney for petitioner

Hon. Michael D. Hess, Corporation Counsel, attorney for respondent, Masako C. Shiono, Esq., of counsel


        Petitioner appeals from the decision of an impartial hearing officer which denied his request for tuition reimbursement for the cost of his daughter's tuition at Winston Preparatory School (Winston) for the 1997-98 school year. The hearing officer denied petitioner's claim despite having found that respondent's committee on special education (CSE) of Community School District 3 had failed to appropriately evaluate the child. The appeal must be dismissed.

        The child was 18 years old and in her senior year at Winston at the time of the hearing. Winston is a private school for learning disabled adolescents in grades 7-12. It has not been approved by the State Education Department to provide instruction to children with disabilities. The child was initially referred to respondent's CSE during the 1995-96 school year, when she was a sophomore at Winston, and was classified as learning disabled. The child has been diagnosed as having an attention deficit disorder (ADD) for which she takes medication.

        In a psychological evaluation conducted on April 5, 1997, the child achieved a verbal IQ score of 102, a performance IQ score of 82, and a full scale IQ score of 92 on the WISC-III, placing her in the average range of intellectual functioning. The school psychologist noted that the 20 point discrepancy between the child's verbal and performance IQ scores was significant, and indicated that the child's learning difficulties were in the nonverbal or performance domain. The child demonstrated above average strengths in her ability to engage in verbal abstract reasoning, and average ability on tasks which required her to formulate common sense solutions to everyday problems in living. She demonstrated a relative weakness on an arithmetic task which required her to answer questions presented to her orally. Within the performance domain, the child demonstrated average strength on a sequencing task, but performed in the low average range on other visual and visual-motor integration tasks. The child scored in the deficient range on a timed symbol substitution task which required her to match symbols with numbers. The psychologist noted that the child's score had been adversely affected by her slow speed during the test.

        The psychologist described the child as a likeable, outgoing girl with no significant social or emotional difficulties. Her interpersonal relationships were described as positive. The psychologist reported that the child appeared to have a strong sense of self and adequate self- esteem for her age. The child advised the psychologist that she has been taking Dexadrine since she was in ninth grade to help her say focused and pay attention. She indicated that without the medication she might become fidgety, easily distracted and unfocused. In a vocational assessment completed on April 5, 1997, the child indicated that she was interested in the fields of child psychology, communications and fashion.

        An educational evaluation was conducted on April 24, 1997. The child achieved grade equivalent scores of 11.4 in basic reading and 12.9 in reading comprehension. In written expression, the child achieved a grade equivalent score of 12.9. The educational evaluator reported that the child's writing sample demonstrated extensive development of ideas, organization, unity, coherence, and variety in sentence structure with minimal errors in grammar, syntax, capitalization and punctuation. The child achieved grade equivalent scores of 9.4 in mathematical reasoning and 8.1 in numerical operations. Though she demonstrated mastery of the four basic operations of math, the child had not learned fractions. In an informal speech/language assessment, the educational evaluator reported that the child had a good command of the English language. She noted that the child spoke without accent, dialect, or obvious speech impediment. The educational evaluator also noted that the child was well aware of her tendency toward distractibility, but was able to perform utilizing appropriate analytical strategies with the help of medication which she took during school hours or when studying for exams.

        In a social history completed on April 25, 1997, the school social worker reported that the child's mother believed that Winston was an appropriate placement for her daughter because the classes were small, enabling the child to receive one-on-one attention. Additionally, the child worked with a language pathologist to help her with language processing difficulties. The child's mother indicated that the child had made progress at Winston, but still experienced some difficulty with math and reading comprehension. She advised the social worker that her daughter planned to attend a small college.

        The child was observed by a school psychologist in May, 1997 while she was in English class. The school psychologist noted that the child was on task throughout the period and that she was an active participant in the lesson.

        The CSE met on August 5, 1997. It recommended that the child continue to be classified as learning disabled, and that she receive resource room services with a student to teacher ratio of 8 :1 one period per day. Petitioner rejected the CSE's recommendation and requested an impartial hearing.

        In a psychoeducational evaluation conducted by a private psychologist in October, 1997, the child achieved a verbal IQ score of 114, a performance IQ score of 85, and a full scale IQ score of 102 on the Wechsler Adult Intelligence Scale - Revised (WAIS-R), placing her in the average range of intellectual functioning. The private psychologist reported that the child's test results reflected that her verbal abilities fell within the high average range, but that she exhibited word finding problems and some auditory processing difficulties. The child's perceptual motor skills were in the low average range. Academically, the child's reading was a strength, writing showed improvement, and mathematics continued to be an area of vulnerability. The private psychologist concluded that the child had a neurologically based deficit in visual-spatial organization, which was associated with difficulty in math, especially in areas that depended heavily on spatial relationships such as fractions, percentages and geometry.

        In a letter dated April 27, 1998, the child's physician indicated that he evaluated the child in January, 1995, and has continued to see her for periodic follow-up visits. He further indicated that the child met the major criteria for an ADD, mixed type. He noted that the child was grossly distractible, disorganized and fidgety, and he opined that external stimulation, such as a large classroom size, would hamper her academic achievement. The child's physician further indicated that the child had a language disability which required special educational instruction from teachers who were familiar with both ADHD and learning disabilities.

        The impartial hearing was held on June 8, 1998. The hearing officer found that the CSE failed to properly evaluate the child because it failed to obtain a current medical evaluation. However, she also found that petitioner failed to prove that the child required a full-time special education setting to progress academically. Accordingly, the hearing officer denied petitioner's request for an award of tuition reimbursement.

        Petitioner challenges the hearing officer's decision on a number of grounds. Initially, petitioner challenges the impartiality of the hearing officer. Before respondent's answer was served, petitioner's attorney submitted an affirmation asserting that he had recently learned that the hearing officer's husband was employed by respondent as an assistant principal in another Community School District, and that she failed to disclose this fact prior to the hearing, precluding petitioner from making a motion for the hearing officer to recuse herself. A challenge to the hearing officer's impartiality on the same grounds was recently dismissed in another appeal (Application of a Child with a Disability, Appeal No. No. 98-51). As I noted in that decision, I am troubled by the hearing officer's failure to at least disclose her husband's employment by respondent in Community School District 6, however, I find that her failure to do so does not afford a sufficient basis for annulling her determination. Having reviewed the transcript and the hearing officer's decision, I find that there is no evidence of any actual bias against petitioner.

        Although the hearing officer agreed with petitioner that the CSE's recommendation should be set aside, petitioner nevertheless continues to challenge the CSE's recommendation on the ground that no teacher who was familiar with the child participated in the CSE meeting. I will note for the benefit of the parties that when a parent unilaterally places a child in a private school, the child's teacher in that school is not the required teacher member of the CSE. Instead, a board of education may designate an individual to serve as the child's teacher member of the CSE, with the proviso that either the designated teacher member or agency representative should be qualified, i.e., licensed or certified to teach in the area of the child's suspected disability (34 CFR 300.344 [a][2], and New York State Education Law Section 4402 [1][b][10]). While I make no finding in this instance, I remind respondent of its responsibility to establish the licensure or certification status of its personnel who participate in CSE meetings as required members of the CSE.

        Petitioner seeks an award of tuition reimbursement. A 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 [1985]). The fact that the facility selected by the parents to provide special education services to the child is not approved as a school for children with disabilities by the State Education Department (as is the case here) is not dispositive of the parents' claim for tuition reimbursement (Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7[1993]). 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).

        With respect to the first criterion for an award of tuition reimbursement, I find that since respondent has not appealed or cross-appealed from the hearing officer's determination regarding the appropriateness of its evaluation to support its recommendation for the child's educational program, petitioner has prevailed.

        The child's parent bears the burden of proof with regard to the second criterion for an award of tuition reimbursement, i.e., the appropriateness of the services which the parent obtained for the child at Winston during the 1997-98 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, petitioner 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, Massachusettssupra 370), i.e., that the private school offered an educational program which met his 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). The record shows that the child's intellectual ability was in the average range, and that she was functioning at or above grade level in basic reading, reading comprehension, spelling, and written expression, but below grade level in mathematics. There is no dispute that the child required special education services to address her weaknesses in mathematics. The CSE concluded that those weaknesses could be adequately addresses by supplementary special education instruction in a resource room program. I cannot agree with the CSE's conclusion because I do not believe that she merely needed a little extra assistance in mathematics. The results of the school psychologist's and private psychologist's reports suggest that this child literally "sees" symbols in a different way than most children. Upon the facts in this record, I find that the child required primary special education instruction in mathematics.

        The child's math teacher, who also taught her science and note taking classes, testified that Winston is a full-time special education school. He indicated that the child's math class had six students, and that the sizes of the classes that he teaches range in size from six to nine students. The child's math teacher further testified that the child had difficulty with math, even in a class of only six students. He indicated that he had to keep the child focused and opined that she would not be able to do algebra II and trigonometry in a class of 25 to 30 students. The child's math teacher also testified that he believed the child had made progress at Winston, and that by the end of the year, the child had a reasonable understanding of math.

        The issue to be determined is whether the child's placement in a school for children with disabilities is consistent with the requirement that she be educated in the least restrictive environment. Although the child was placed by her parent, rather than the school district, in Winston, petitioner's claim for tuition reimbursement is premised upon the provisions of the Individuals with Disabilities Education Act (20 USC 1400 et seq.) which requires that children with disabilities be educated in the least restrictive environment (see P.J. v. State of Connecticut, 788 F.Supp. 673 [D. Conn.,1972]; Application of a Child with a Disability, Appeal No. 92-7, decision sustained sub nom.; Lord v. Bd. of Ed. Fairport CSD et al., 92-CV-6286 [W.D. N.Y., 1994]). That requirement must be balanced against the requirement that they receive an appropriate education (Briggs v. Bd. of Ed. of the State of Connecticut, 889 F. 2d 688 [2d Cir., 1989]).

        Based upon the information before me, I find that Winston provided the child with appropriate special education instruction to address her math deficits. However, I am not persuaded that a full-time special education placement was appropriate for this child, given the fact that she was functioning at grade level in other areas. Accordingly, I find that the child's placement in a full-time special education program was inconsistent with the requirement of placement in the least restrictive environment, and that petitioner has not satisfied the second criterion for an award of tuition reimbursement. I note that petitioner requests a remedy in the form of partial relief seeking reimbursement for the services that were appropriate, in this case, mathematics. However, he fails to provide a basis for the apportionment of such relief. Moreover, there is no information in the record that suggests a reasonable cost for the special education services the child required. Under the circumstances, I am unable to fashion such relief. Having reached this conclusion, it is not necessary that I address whether the equities favor petitioner's claim for reimbursement.


Topical Index

CSE ProcessCSE Composition
Parent Appeal
Preliminary MattersIHO Qualifications/Bias
Preliminary MattersScope of Review
Unilateral PlacementAdequacy of Instruction
Unilateral PlacementLRE
Unilateral PlacementProgress