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 her request for tuition reimbursement for the cost of her daughter's tuition at the Steven Gaynor School (Gaynor) for the 1998-99 school year. The appeal must be sustained.
Preliminarily, I will address a procedural issue raised in this appeal. Petitioner's attorney has submitted an affirmation dated April 5, 1999, asserting that the CSE conducted new evaluations of the child beginning on or about December 8, 1998, and then recommended a full-time special education program for the child for the 1999-2000 school year at the child's annual review meeting in March, 1999. Annexed to the affirmation is a December 8, 1998 social history update, a December 8, 1998 education evaluation report, a December 16, 1998 psychological report, a February 1, 1999 classroom observation, a February 3, 1999 speech/language evaluation, the child's IEP for the 1999-2000 school year dated March 5, 1999, and a notice of deferred placement dated March 15, 1999. Petitioner's attorney asserts that respondent's failure to disclose the existence of the evaluations at the hearing misled the hearing officer as to the actual needs of the child at the time of the hearing, and he asks me to consider these documents in this appeal. In its answer, respondent urges me to disregard any new allegations or information provided by petitioner because those matters were not part of the record which was before the hearing officer.
Documentary evidence not presented at a hearing may be considered in an appeal from a hearing officer's decision, if such evidence was unavailable at the time of the hearing, or the record would be incomplete without the evidence (Application of a Child with a Disability, Appeal No. 95-41). The social history update and the educational and psychological evaluations were completed prior to the commencement of the hearing. The speech/language evaluation and the classroom observation were not conducted until after the hearing. These documents provide evidence concerning the child's level of functioning during the 1998-99 school year, which is the school year at issue in this proceeding. I will accept them so that I will have a more complete record. However, I will not accept the IEP for the 1999-2000 school year because it relates to a subsequent school year which is not the subject of this appeal.
Petitioner's daughter was nine years old and in the equivalent of the third grade at Gaynor at the time of the hearing. Gaynor has not been approved by the New York State Education Department to provide education to children with disabilities. The child attended kindergarten at the Little Red Schoolhouse (Little Red), which is a regular education school in New York City, during the 1994-95 school year. At the recommendation of Little Red, a psychological evaluation of the child was conducted in January, 1995, which reportedly resulted in the child receiving speech/language therapy and tutoring in reading. The child repeated kindergarten during the 1995-96 school year, at the suggestion of Little Red. She continued to receive private speech/language therapy and tutoring in reading during that year. The child was promoted to the first grade for the 1996-97 school year. She was placed in a structured first grade class with 20 students, 2 teachers and a student teacher, and received small group resource room support during reading time five times per week, in addition to receiving private speech/language therapy and tutoring in reading after school.
The child was reportedly referred to the CSE in Community School District 2, which commenced an evaluation in May, 1997. On May 5, 1997, the child was re-evaluated by a private psychologist who had previously evaluated the child in 1995. Based upon projective testing, the private psychologist found that the child appeared to be developing an increasingly defensive style regarding her learning difficulties. She warned that the child was vulnerable to low self-esteem and a negative self-image as a student. The private psychologist indicated that the child was anxious in relation to her performance, especially on tasks that were difficult for her. Additionally, she noted that the child was aware of the continuing discrepancy between her work and that of more successful students in her class. The private psychologist further noted that despite significant academic support, the child was unable to meet age and grade level expectations. She recommended a change in the child's placement to a small, structured special education setting with a low student to teacher ratio, in a program designed to teach children who have specific learning and language disabilities.
In an educational evaluation conducted on May 17, 1997 at the end of her first grade year, the child achieved grade equivalent scores of 1.8 on reading decoding and 2.0 on spelling on the Kaufman Test of Educational Achievement (KTEA). The reading comprehension subtest of the KTEA was attempted, but the evaluator reported that the child could not read well enough to answer the questions. On the Durrell Oral Reading subtest, the child achieved 60% accuracy at the first grade level selection and 100% accuracy at the beginning second grade level on the listening passage subtest. The child's mathematics skills were assessed to be at the second grade level.
In a speech/language progress report dated May 20, 1997, the child's speech/language pathologist reported that the child had been receiving speech/language therapy twice per week since October, 1995. The speech/language pathologist noted that the child had significant language formulation problems. The child also exhibited weaknesses in auditory memory, word recall, oral expression, and in processing complex questions and information. The speech/language pathologist indicated that the child's language difficulties have an adverse impact upon her academic performance which would become more apparent as reading, oral expression and auditory processing became more critical in the academic setting. Additionally, she noted that the child had become increasingly aware of her deficits, and gave up when she sensed difficulty. The speech/language pathologist recommended that the child continue to receive speech/language therapy in a small, structured school setting with a low student to teacher ratio.
The child was evaluated by one of respondent's psychologists on May 31, 1997. On the Stanford-Binet Intelligence Scale: Fourth Edition, the child achieved a composite score of 108, placing her at the top of the average range of intellectual potential. The school psychologist reported that the child's scores showed an uneven pattern of development. She further reported that although the child's verbal short-term memory was in the average range, it fell below the mean for her age group and was indicative of verbal processing and memory difficulties. Projective testing indicated that the child had low self-esteem in relation to her learning. The school psychologist recommended that the child be placed in an environment that was flexible and accepting of children with differences, so that the child would not be compared to her peers and made to feel inadequate.
As the child neared the end of the first grade, the staff at Little Red suggested that her parents explore other programs for their daughter. In an undated letter to the CSE Review Team, the Little Red staff members indicated that the child was performing at the lowest end of her class, notwithstanding the support which she had received. They also indicated that her self-esteem was beginning to falter. The Little Red staff indicated that the child's reading skills remained at a primer to pre-primer level, her writing skills were compromised by difficulties in sequencing and organization of thoughts, and the development of her mathematics skills had been hindered by language related conceptual difficulties. The staff recommended that the child be placed in a small, structured specialized placement with support services on site where she could be immersed in an appropriate level of remediation. They believed that they had provided the child with the equivalent of an inclusive special education setting which had not proven to be adequate.
The CSE reportedly recommended that the child be placed in a modified instructional services-I (MIS-I) program for the 1997-98 school year. However, her parents placed her at Gaynor for the second grade during the 1997-98 school year. On December 3, 1997, the child was observed in a class of six students with a teacher and an assistant teacher at Gaynor. The observer, who was one of respondent's evaluators, reported that the students were asked to recount three activities they participated in during the preceding day, and that petitioner's child had answered in an almost inaudible voice. After circle time, the class divided into reading groups. The child was in a group of four students reading at the mid-first grade level. The observer noted that the child volunteered several times to answer questions posed by the teacher, and that she followed all instructions readily and remained focused on the task at hand. However, the child did not interact with any of the other children (Exhibit 5).
A speech/language evaluation was conducted on February 26, 1998. The speech/language evaluator reported that the child was receiving small group speech/language therapy twice per week for 30 minutes at Gaynor. She assessed the child to be functioning on or above age level expectancy in all areas, except for identifying concepts and directions. Those skills were assessed to be at the emerging level . The evaluator recommended that the child continue to receive language therapy to remediate her emerging skills (Exhibit 4).
In a social history update dated March 12, 1998, the child's mother indicated that her daughter's primary difficulties were with reading. She further indicated that her daughter received speech/language therapy at school and was no longer receiving tutoring outside of school.
An educational evaluation was completed on March 12, 1998. Respondent's educational evaluator noted that the child's individual education program (IEP) indicated that a MIS-I class had been recommended for the child for the 1997-98 school year. On the basic reading decoding subtest of the Wechsler Individual Achievement Test (WIAT), the child achieved a score in the below average range. On the comprehension subtest, she scored significantly below average, with a standard score of 69. On the Brigance Inventory of Basic Skills, the child recognized words at the preprimer and primer level, but could not successfully read the first grade word recognition list. On the oral reading subtest, the child read the preprimer selection, but could not read the primer level. The educational evaluator assessed the child's performance to be similar to that of a student at approximately a mid first grade level in reading. With respect to her math reasoning skills, the child could solve word problems involving simple one-step addition and subtraction and could read a clock to the hour, but could not read a bar graph and had difficulty solving problems with coins. The educational evaluator noted that all word problems were read aloud to the child. Her spelling and written language skills were assessed to be in the average range. The evaluator reported that the child evidenced word retrieval problems at times (Exhibit 3).
When it met on June 11, 1998, the CSE recommended that the child continue to be classified as learning disabled. Her classification is not in dispute. The CSE further recommended that the child be placed in a Supplemental Instructional Services-I (SIS-I) program, i.e., that she receive resource room services 5 times per week, and speech/language therapy in a small group twice per week. In its rationale, the CSE indicated that the child had made progress in reading and math, but struggled to process information and would benefit from a resource room program to address comprehension difficulties (Exhibit 8).
Sometime thereafter, petitioner requested an impartial hearing because she believed that her daughter required a more restrictive placement. The hearing was initially scheduled for December, but was postponed until January 8, 1999 by mutual consent of the parties.
In December, 1998, the CSE began its annual review of the child for purposes of recommending a placement for the 1999-2000 school year. A social history update was conducted on December 8, 1998 based upon an interview with the child's mother. The child's mother advised the district's social worker that the child was reading below age and grade level. Additionally, the child's mother indicated that her daughter's language processing problems were obvious, and that she became frustrated when she could not find the words to express herself.
An educational evaluation was conducted on December 8, 1998. The educational evaluator noted that the child worked at a slow pace and needed encouragement to attempt tasks she perceived as being too difficult. The child's overall reading skills were assessed to be in the low average range, approximately one year behind her chronological peers. Her word identification and passage comprehension skills were also found to be in the low average range. The child had a difficult time sounding out words, and her repertoire of sight words was limited. The educational evaluator opined that the child's reading passage comprehension was limited by her poor word identification skills. The child's reading decoding skills were also assessed to be at the low end of the average range. The educational evaluator suggested that the child develop decoding strategies, and recommended that she learn to automatically recognize certain sight words so that reading would become less work. She opined that the child was in need of direct remediation for reading. The educational evaluator reported that the child had well developed math skills and was functioning above grade level.
In a psychological evaluation conducted on December 16, 1998, the child achieved a verbal IQ score of 102, a performance IQ score of 112, and a full scale IQ score of 107, placing her in the average range of intellectual functioning. The school psychologist indicated that the child was capable of age-grade appropriate academic work and overall adjustment. She noted that learning was a source of discomfort for the child, and that she projected anxiety relative to her school achievement. The school psychologist reported that the child's self-image was poor and that her self-esteem was low. She noted that the child was disappointed in herself, and believed she was a disappointment to others in regard to her schoolwork. The school psychologist recommended that the child receive counseling as a related service in school and/or psychotherapy at an outside agency.
The impartial hearing was held on January 8, 1999. On February 1, 1999, the child was observed at Gaynor during a reading lesson on the long "i" and "e" sounds. The evaluator observed that the class consisted of five students. She reported that the child volunteered to read words listed on the board, but was unable to read "dry", "tiny" and "reply". The child was able to read three other words listed on the board. The students were given a worksheet and asked to highlight words that ended in the long "i" sound. The evaluator observed that the child worked slowly, and was the last student to finish. On a second worksheet, the child again worked slowly and was the last to finish. The students were then asked to read their answers aloud. When it was the child's turn, she read her first word incorrectly. She lost her place on her second word, was redirected by the teacher twice, found her place, then gave an incorrect answer. In another lesson, the students were asked to copy sentences from the board. The evaluator observed that the child copied slowly. The students were then asked to write sentences independently on a review sheet. Petitioner's child was still writing after other students had completed their work.
A speech/language evaluation was conducted on February 3, 1999 for the purpose of determining the child's level of language functioning. The speech language pathologist reported that the child had low average speech/language skills. She noted that the child had receptive language deficits characterized by difficulties with auditory comprehension type tasks, as well as expressive language deficits. She recommended that the child receive speech/language therapy twice per week in a group setting.
The hearing officer rendered his decision on February 11, 1999. He found that the placement recommended by respondent's CSE was suitable, appropriate, and in the least restrictive environment. He noted that the child was performing near or at grade level. Additionally, he found that the IEP goals were specific and could be achieved in a resource room, and that the child would have been appropriately grouped. With respect to petitioner's claim that the CSE had recommended a more restrictive placement the previous year relying upon the same psychological evaluation, the hearing officer found that the teacher report from Gaynor showed that the child had made progress and demonstrated that it was appropriate for the child to move from a self-contained class. Accordingly, the hearing officer denied petitioner's request for an award of tuition reimbursement.
Petitioner appeals the hearing officer's decision on a number of grounds. She is seeking tuition reimbursement claiming that the level of services offered by respondent was insufficient to meet her daughter's needs. 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]).
Respondent asserts that the 1997 amendments to the Individuals with Disabilities Education Act (hereinafter referred to as IDEA) prohibit a parent from seeking reimbursement if the child has not received special education and related services under the authority of a public agency. (See Section 1412[a][C][ii]) This argument was made by respondent in another appeal (Application of a Child with a Disability, Appeal No. 98-25). As I noted in that decision, absent convincing evidence to the contrary, I cannot conclude that the statute was meant to preclude an award of tuition reimbursement to the parent of a child who had not previously received special education from a school district.
With respect to the first criterion for an award of tuition reimbursement, whether the services offered by the board of education are adequate or appropriate, an appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the child's needs, provides for the use of appropriate special education services to address the child's special education needs, and establishes annual goals and short-term instructional objectives which are related to the child's educational deficits (Application of a Child with a Disability, Appeal No. 93-9; Application of a Child with a Disability, Appeal No. 93-12).
The record shows that the child had reading comprehension difficulties. Despite intensive academic support during school and reading tutoring outside of school during kindergarten and first grade, standardized tests show that she was still functioning below grade level in March, 1998 when her IEP was developed. I note that the most recent educational evaluation recommended that the child receive "direct remediation for reading." While the child's IEP does identify reading as an area of weakness, I find that it does not adequately reflect the nature and extent of the child's deficits in reading as described in the evaluations.
Additionally, the record shows that the child had severe language processing problems. The speech/language therapist at Gaynor testified that the child had significant auditory processing difficulties and limited comprehension of semantic relationships, i.e., how words relate to each other, which resulted in difficulty comprehending complex information and following directions. However, the child's IEP includes the results of a February, 1998 speech/language evaluation which assessed the child to be functioning on and above age level in all areas except identifying concepts and directions. Again, I find that the IEP does not adequately reflect the nature and extent of the child's language deficits as described in the evaluations. Additionally, the evaluations which were performed before the IEP was prepared consistently show that the child's self-esteem was damaged by her anxiety about her academic performance. I note that the most recent psychological evaluation recommended counseling to address the child's anxiety and low self-esteem. In any event, the IEP which was prepared before that evaluation was conducted fails to include any reference to such needs. Based upon the information before me, I find that the IEP does not adequately reflect the child's special education needs. Accordingly, I find that respondent has failed to meet its burden of demonstrating that the recommended program was appropriate, and that petitioner has prevailed with respect to the first criterion for an award of tuition reimbursement.
With respect to the second criterion for an award of tuition reimbursement, the child's parent bears the burden of proof with regard to the appropriateness of the services which the parent obtained for the child at Gaynor 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, the parent must show that the services were "proper under the act" [IDEA] (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 the 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 issues to be determined are whether the private school met the child's special education needs, and 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 at Gaynor, 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]).
The parties agree that the child had reading comprehension difficulties and language processing problems. In addition, the record shows that the child was anxious about her academic performance which negatively impacted her self-esteem. The child's teacher, who taught the child for the second and third grade, testified that the child required extreme structure in a small group setting. She stated that the child was in a reading group of five children, and needed frequent review of sight words and phonics. She also stated that she works in conjunction with a speech/language therapist, who is in the classroom three days per week for half hour sessions. The child's teacher further testified that reading and expressive and receptive language were part of the whole curriculum and worked on throughout the day. In addition to the testimony set forth above, the speech/language therapist testified that she sees the child once or twice per week either in a small group or on an individual basis, as well as in the classroom sessions. She further testified that she breaks down directions into small pieces of information to facilitate the child's ability to process information and aid in comprehension. The child's mother testified that her daughter has benefited from her experience at Gaynor. She further testified that her daughter's emotional and personal well-being has improved, even though no counseling was provided to her. She stated that her daughter now enjoys school, and even though her reading continued to be labored, she is positive about it. Based upon the information before me, I find that Gaynor offered an educational program that met the child's special education needs, in a manner which was consistent with the requirement that the child be educated in the least restrictive environment.
The third criterion for an award of tuition reimbursement is whether equitable considerations support the parent's claim for tuition. There is no indication in the record that petitioner was unwilling to cooperate with the CSE. I find that the third criterion for an award of tuition reimbursement has also been met.
I have considered petitioner's other claims which I find to be without merit.
THE APPEAL IS SUSTAINED.
IT IS ORDERED that the decision of the hearing officer is hereby annulled; and
IT IS FURTHER ORDERED that respondent shall reimburse petitioner for the cost of her daughter's tuition at Gaynor for the 1998-99 school year, upon presentation of proof of payment for such tuition.