APPLICATION OF A CHILD WITH A DISABILITY, by his parents, for review of the determination of a hearing officer relating to the provision of educational services by the Board of Education of the Somers Central School District
Legal Services of Dutchess County, attorney for petitioners, Linda A Geraci, Esq.,of counsel
Donoghue, Thomas, Auslander, and Drohan, Esqs., attorneys for respondent, Daniel Petigrow, Esq, of counsel
Petitioners appeal from an impartial hearing officer's decision which upheld the recommendation by respondent's committee on special education (CSE) that their son be placed in a regular education first grade class at respondent's Primrose Elementary School for the 1998-99 school year. In doing so, the hearing officer denied petitioners' request that respondent be required to reimburse them for the cost of the child's tuition at, and transportation to, a private school. The appeal must be sustained in part.
Petitioners' son is seven years old. He has ataxic Cerebral Palsy, which affects his balance, coordination, fine and gross motor planning, and his speech. The child reportedly had seizures as an infant, but has been seizure-free since then. He has been diagnosed as having left Erb's Palsy and static encephalopathy. When evaluated by a psychologist at the St. Agnes Hospital Children's Rehabilitation Center in Carmel, New York in October, 1997, the child achieved a verbal IQ score of 111, a performance IQ score of 108, and a full scale IQ score of 111. He exhibited relative weakness performing tasks requiring the use of fine and graphomotor skills and the completion of tasks within the time limits, because of his low muscle tone and general muscle weakness.
The child received early intervention physical therapy and speech/language therapy prior to his third birthday. During the 1995-96 and 1996-97 school years, the child attended a pre- school program at the St. Agnes Hospital Children's Rehabilitation Center, where he continued to receive speech/language therapy, physical therapy, and occupational therapy. The child came under the CSE's jurisdiction for the 1997-98 school year. The CSE recommended that petitioners' son remain in the St. Agnes program, and receive individual speech/language therapy twice per week, consultant physical therapy once per week, consultant occupational therapy once per week, and adaptive physical education twice per week. In its minutes, the CSE noted that the child had developed number of kindergarten readiness skills, but it recommended that he remain at St. Agnes because of physical and medical concerns. Petitioners accepted the recommendation.
As noted above, the child was evaluated by a school psychologist in October, 1997. The school psychologist reported that the boy was cognitively ready for the first grade, but that his social/emotional adjustment would have to be monitored when he made a transition to a new educational setting. In January, 1998, a St. Agnes speech/language evaluator reported that the child had achieved a total language age equivalent score of seven years and seven months on the Clinical Evaluation of Language Fundamentals-Preschool, but his speech intelligibility was at a three and one-half to four year old level.
In February, 1998, a St. Agnes physical therapist reported that the child's gross motor skills were at the 40-month level. She indicated that the child exhibited low muscle tone in his trunk and extremities, with his left side being more involved than his right side. The physical therapist indicated that the child could ambulate independently, with braces on both of his legs. She also indicated that the child could go up stairs, but would lose his balance if distracted, or if he moved too quickly.
A St. Agnes occupational therapist who evaluated the child in February, 1998 reported that his visual perceptual skills were above age level, but there was a five-month delay in his visual motor control. She noted that the child's adaptive play skills had improved, but were delayed by approximately six months. She recommended that the child continue to receive direct occupational therapy to improve his upper extremity distal strength and endurance, refine his grasp, and improve the speed and dexterity of his manipulation skills.
On March 22, 1998, the child's special education teacher at St. Agnes completed an educational evaluation. She reported the child exhibited age appropriate skills in auditory/visual perception, concept development, attention span, computer skills, and play and socialization. The teacher reported that the child moved around the school independently using a slow, unsteady gait, requiring supervision. She also reported that the child used a step over step pattern on stairs, while holding onto a hand rail. The teacher reported the child required extra time to go from place to place, and needed assistance getting on and off the school bus. She indicated that the child became tired and weak walking long distances, but she did not indicate how far he could walk without becoming tired. She also indicated that the child had exhibited deficits in his fine motor skills in such activities as writing and using scissors.
In April, 1998, the child's mother reportedly advised respondent's school social worker that petitioners were seeking an alternative to placing the child in the Primrose Elementary School, which the child would have attended if he were not disabled, because they believed that school would be inappropriate for their son. Petitioners also requested that their son be transported by respondent to the private school in which they intended to enroll the child, the Hudson Country Montessori School in Danbury, Connecticut (Hudson). Petitioners' request was reportedly denied by respondent's transportation office on the ground that the distance between the child's home and Hudson was more than the 15-mile limit for regular transportation (see Section 3635  of the Education Law). Petitioners also requested that respondent provide related services to the child at Hudson. That request was also denied, but respondent reportedly offered to provide related services to the child at the Primrose Elementary School while he attended Hudson (see Section 3602-c of the Education Law).
The CSE conducted its annual review of the child on June 15, 1998. It recommended that the child be classified as orthopedically impaired. I note that there is no dispute about the appropriateness of the child's classification. The CSE further recommended that the child be placed in a regular education first grade class, with the related services of individual speech language therapy twice per week, individual occupational therapy twice per week, individual physical therapy once per week, as well as adaptive physical education twice per week. There was no challenge to the child's recommended program. The CSE recommended that the child attend respondent's Primrose Elementary School, to which petitioners did object. The individualized education program (IEP) which the CSE prepared for the boy (Exhibit 1) indicated that he required small vehicle transportation, and that the CSE would meet after 10 weeks to review the boy's needs for services. The IEP also indicated that the CSE had considered placement in a special day school for the child, and had concluded that it would be too restrictive a placement for him. The child's annual goals for the 1998-99 school year included improving his cognitive, social, gross and fine motor skills, as well as his endurance to participate in physical activities during the school day. The minutes of the CSE meeting, which are attached to the boy's IEP, reveal that there was no parent of a child with disability member of the CSE, as is required by Section 4402 (1) (b) (1) of the Education Law.
The child's neurologist had indicated in late May, 1998 the child was suffering from intermittent sleepiness, the cause of which was unknown. After the CSE meeting, the neurologist opined that the child had a strong tendency to tire easily whenever he had to walk any significant distance. He suggested that it would be preferable to have him in an academic environment in which walking demands would be absolutely minimal (Parents' Exhibit 4). By letter dated August 13, 1998 (Parents' Exhibit 1), a physiatrist who had evaluated the child at the Blythedale Children's Hospital in Valhalla, New York on that date, opined that the boy's ambulation endurance was very limited. He recommended that the child be placed in a school which did not require him to use stairs and which required him to walk for only short distances during the course of the school day. The physiatrist did not define what he meant by the term "short distance".
A school psychologist from St. Agnes opined in a July 30, 1998 letter that it would be detrimental to the child's growing sense of confidence and competence and to his self-esteem to be transported by a wheelchair while in school (Parents' Exhibit 6). I note that the child's IEP did not refer to his use of a wheelchair. However, the CSE chairperson testified at the hearing that a wheelchair lift would be used to bring the child down to ground level for access to the recess/play area. Respondent's school physician, who reviewed the opinions by the child's neurologist and by the child's pediatrician, concluded that it was reasonable to have a wheelchair available to limit the distance which the child would have to walk while still allowing him to socialize with his peers at the Primrose Elementary School (Parents' Exhibit 5 ).
In a letter dated August 14, 1998 which was addressed to respondent's Director of Special Services (Parents' Exhibit 9), petitioners rejected the CSE's recommendation for placement in the Primrose Elementary School, and they requested mediation (see Section 4404-a of the Education Law). That effort was apparently unsuccessful, and the hearing in this proceeding began on October 6, 1998. At the beginning of the hearing, the parties advised the hearing officer that there was no dispute about the nature of the services which the CSE had recommended for the child, and that the dispute was about the location in which the services were to be provided. Petitioners sought an order requiring respondent to reimburse them for the $6,000 cost of their son's tuition at Hudson. They also challenged respondent's refusal to transport their son to Hudson, or to provide related services to him at that school.
In his decision dated November 17, 1998, the hearing officer found that CSE erred by holding its meeting without a parent representative member on June 15, 1998. Nevertheless, he concluded that the validity of the results of the CSE's June 15, 1998 meeting was not an issue before him, and noted that petitioners had determined prior to that meeting to enroll their son in Hudson. With respect to the issues of tuition and transportation costs, the hearing officer found there was no dispute about the child's ability to do first grade work, although fatigue might limit his ability to work. He found that the testimony by the child's St. Agnes teacher substantiated the CSE's belief that petitioners' son could function successfully at the Primrose Elementary School, with the assistance which the CSE had recommended. In doing so, the hearing officer compared the distances which the child had walked at St. Agnes with those he walked during the 1998-99 school year at Hudson, and those he would have walked if he attended the Primrose Elementary School. He concluded that the distances were substantially similar. The impartial hearing officer concluded that respondent had met its burden of proving that it had offered a free appropriate public education to petitioners' son during the 1998-99 school year, and he denied petitioners' request for reimbursement for tuition or the cost of the child's transportation to Hudson.
In their appeal from the hearing officer's decision, petitioners allege that the IEP which the CSE prepared for their son on June 15, 1998 was defective because it did not include any instructional modifications or supplementary services to address the child's fine motor difficulties. Respondent objects to petitioners' eleventh hour attempt to challenge this aspect of the boy's IEP, in light of counsel's representation at the outset of the hearing that the only issue was the location of the services to be provided to the child. I must agree with respondent. It was entitled to reasonable notice of the nature of petitioners' disagreement with the CSE's recommendation since it had the burden of proving the appropriateness of the recommendation.
Petitioners challenge the hearing officer's determination regarding the absence of the parent member of the CSE. They contend that the CSE's recommendation for placement should have been declared void by the hearing officer because the CSE was not validly composed. The hearing officer found that " ... the validity of the CSE results is not an issue before the Hearing Officer." Respondent argues that petitioners are precluded from raising the issue in an appeal to the State Review Officer because it was not raised before the hearing officer (Application of a Child with a Disability, Appeal No. 98-61). However, petitioners did raise the issue of the composition of the CSE in their opening statement at the hearing (Transcript, page 15). Although petitioners were in agreement with the educational program, i.e., the special education (related) services which the CSE had recommended, they disagreed with the CSE's recommended placement of their son in the Primrose Elementary School. The child's placement was part of his IEP. I find that petitioners raised the issue of placement at the hearing, and that respondent's argument is without merit. I further find that the hearing officer erred in finding that the issue was not before him. It is well settled that an IEP which is prepared by an invalidly composed CSE is a nullity (Application of a Child with a Handicapping Condition, Appeal No. 90-16; Application of a Child with a Handicapping Condition, Appeal No. 92-31; Application of a Child with a Disability, Appeal No. 95-8). Therefore, I must find that the CSE's recommendation that petitioners' son attend the Primrose Elementary School should be annulled, regardless of the merits of that placement.
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 ). 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). 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]). In this instance, I have determined that the CSE's recommendation must be annulled. Therefore, respondent did not meet its burden of proof on the first of the three Burlington criteria for an award of tuition reimbursement.
The child's parents bear the burden of proof with regard to the appropriateness of the services which they obtained for the child at Hudson during the 1998-99 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, petitioners 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 their 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 reveals that petitioners' son was enrolled in a class of 13 children, 9 of whom were considered to be first graders, at Hudson during the 1998-99 school year. The child's teacher testified that the children were grouped by age, rather than by grade, at Hudson. The teacher was assisted in the classroom by a "teacher in training". The child's teacher testified that she used the Montessori curriculum, which she believed to be comparable to the standard first grade curriculum in New York State. Hudson's Executive Director also testified that his school's curriculum was comparable to the first grade curriculum in New York public schools. The Executive Director also testified that Hudson did not employ staff to provide speech/language therapy or occupational therapy. The child's mother testified that petitioners had arranged for the child to receive speech/language therapy for 45 minutes per week and two 45 minute sessions of occupational therapy per month from the Datahr Rehabilitation Institute in Connecticut. The child did not receive physical therapy during the 1998-99 school year.
Special education is defined by State regulation to mean:
" ... specially designed individualized or group instruction or special services or programs, as defined in subdivision 2 of section 4401 of the Education Law, provided at no cost to the parent, to meet the individual needs of students with disabilities" (8 NYCRR 200.1 [kk]).
There is nothing in the record of this proceeding which indicates that this child required specially designed individualized or group academic instruction. However, the boy's IEP indicated that he would at least initially receive adaptive physical education, pending an evaluation of his physical needs. Adaptive physical education is specially designed instruction (8 NYCRR 200.1 [b]). It was not provided by Hudson. The child's teacher at Hudson testified that petitioners' son was participating in Hudson's regular physical education program with no apparent difficulty.
Related services are also included within the definition of special education (see Section 4401 [k]). The CSE had recommended that this child receive the related services of speech/language therapy, occupational therapy, and physical therapy. Although the CSE's recommendation as to the child's placement must be annulled, I must note that there was no dispute at the hearing about the appropriateness of the related services which the CSE had recommended. In addition, I find that the record demonstrates that the recommended related services were appropriate for this child. However, Hudson did not provide any of those services to the child.
Having determined that Hudson did not provide any specially designed instruction or related services to petitioners' son, I must find that petitioners have failed to meet their burden of proving that Hudson offered a program which met their child's special education needs. I have considered petitioners' assertions about the physical layout of Hudson in terms of their son's ability to walk and stand for extended period of time. They assert that the child was required to walk significantly less at Hudson than he would have if he had attended the Primrose Elementary School. However, I must note that the witnesses who testified at the hearing offered estimates of the distances the boy walked at Hudson, or would have walked at the Primrose Elementary School, and there were significant discrepancies in their testimony, e.g., the testimony by his teacher and the Executive Director about the distance to the gymnasium at Hudson. Moreover, there are only very vague statements by the child's physicians about the child's ability to walk for extended distances without becoming fatigued. In view of my finding that petitioners have failed to satisfy the second criterion for an award of tuition reimbursement, I do not reach the issue of whether their claim for reimbursement is supported by equitable considerations.
Petitioners also challenge the hearing officer's determination denying their request that respondent be ordered to provide or pay for their son's related services at the site of their son's private school. They acknowledge that the U.S. Court of Appeals for the Second Circuit has held that the Individuals with Disabilities Education Act, (20 USC (1400 et seq.) allowed, but did not require, school districts to provide on-site special education services to children with disabilities who are voluntarily enrolled by their parents in private schools (Russman v. Mills and Bd. of Ed. of the Enlarged City Sch. Dist., 150 F. 3d 219 ). However, they contend that their son required on-site services in order to receive a free appropriate public education, and that it would be "medically contra-indicated" not to receive services there. I have looked at Parents' Exhibit 4, and find that petitioners' argument is overstated. Respondent offered to provide the boy's related services at the Primrose Elementary School, which was consistent with its obligations under Federal and State law (20 USC 1412 [a][A]; Section 3602-c of the New York State Education Law). Petitioners' challenge must therefore be dismissed.
Petitioners contend that the hearing officer erred by denying their request for an order requiring respondent to transport their child to Hudson during the 1998-99 school year. They assert that their son was entitled to receive transportation to Hudson pursuant to the provisions of Section 4402 (4)(d) of the New York State Education Law, which reads as follows:
" d. Notwithstanding any other provision of law, such board shall provide suitable transportation up to a distance of fifty miles to and from a nonpublic school which a child with a handicapping condition attends if such child has been so identified by the local committee on special education and such child attends such school for the purpose of receiving services or programs similar to special educational programs recommended for such child by the local committee on special education."
I find that this statute is inapplicable because this child was not attending Hudson for the purpose of receiving the special services or programs recommended by the CSE, i.e., adaptive physical education, speech/language therapy, occupational therapy and physical therapy. The private school did not provide any of those services, nor was it necessary for the child to attend Hudson in order to receive those services.
THE APPEAL IS DISMISSED.