Application of a CHILD WITH A DISABILITY, by his 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 of the City of New York
Hon. Michael D. Hess, Corporation Counsel, attorney for respondent, Martha Calhoun, Esq., of counsel
Petitioner appeals from the decision of an impartial hearing officer which awarded petitioner partial tuition reimbursement for the cost of her son’s tuition at York Preparatory School (York), for the 1998-99 school year. York is a private school in Manhattan that serves both regular education and special education students. It has not been approved by the State Education Department to provide instruction to children with disabilities. Petitioner seeks an award of full tuition reimbursement. The appeal must be sustained.
Prior to addressing the merits of petitioner’s appeal, I must first address two procedural issues. First, petitioner contends in her reply that I should not consider respondent’s answer because it was served in an untimely manner. An answer must be served within ten days of service of a petition (8 NYCRR 279.5). The petition was personally served on June 9. When a petition is served personally, the actual date of service is excluded in computing the time period in which the respondent must serve an answer. The tenth day after service was June 20, which was a Sunday. Respondent’s deadline to answer was automatically extended to Monday, June 21 (8 NYCRR 275.8 [b]). Respondent’s answer was dated June 21, but the affidavit of service by mail was dated June 22. Petitioner reportedly received respondent’s answer July 2. Petitioner contends that she has been prejudiced by the delay in receiving respondent’s answer, and objects to acceptance of respondent's answer. However, I find that the delay was minimal, and that petitioner has not demonstrated any prejudice to her as a result of the delay. I will accept respondent’s answer.
The second procedural issue concerns additional evidence submitted by petitioner with her appeal. Petitioner submitted copies of certain stipulations between the parties. Among other things, the stipulations pertain to payment of the child’s tuition by respondent for prior school years and the obligation of petitioner to provide evaluations in a timely manner so that the CSE could consider them in developing the child’s IEPs. Respondent objects to the submission of the stipulations. However, I note that respondent raised the issue of petitioner's timely submission of evaluations at the hearing, and the hearing officer did mention the parent’s compliance with the stipulations in his decision. I will, therefore, accept the additional material in order acquire a complete history of the case in arriving at my decision.
Petitioner’s child was seventeen-years-old and a student at York at the time of the hearing. The child was originally referred to the Committee on Special Education (CSE) by his second grade teacher in December, 1988 because he reportedly had academic and language difficulties (Exhibit P-A). A psychologist reported that the child had above average cognitive skills and also had emotional problems. However, the CSE apparently did not classify the child. The child was referred to the CSE again in February, 1989 because of reading and writing difficulties, and also referred in April, 1989 because of a suspected auditory processing difficulty. He was not classified after either referral. In 1991, the child was again referred for evaluation because of academic and behavioral difficulties. Upon evaluation, the child reportedly achieved a full scale IQ score in the very superior intellectual range. (Exhibit P-B). On standardized tests taken in 1992, the child achieved a reading score in the seventieth percentile and a math score in the ninety-ninth percentile. Similar testing in 1993 revealed that the child achieved scores in the seventy-third percentile in reading and the ninety-second percentile in math (Exhibit P-C).
The child was re-evaluated at petitioner's request in January and February, 1994, when he was in the seventh grade at JHS 167. On the WISC-III, the child achieved a verbal IQ score of 114, a performance IQ of 107, and a full scale IQ score of 112. The evaluator indicated that there was significant inter-test scatter, and a decline in intellectual functioning since 1991. Projective testing indicated that the child was anxious, angry, depressed and suffered from low self esteem. The evaluator suggested resource room services to address the child’s weaknesses in writing and spelling, as well as counseling to help the child in his adjustment at school (Exhibit P-B). An educational evaluator reported that the boy's fine motor skills for writing were below normal, and his creative expression was at the second to third grade level. His spelling skills were at mid-third to early fourth grade level (Exhibit P-C).
In February, 1994, the CSE classified the child as learning disabled, and recommended that he receive resource room services. The child was described as having poor spelling and writing skills and inaudible speech. He reportedly interacted appropriately with friends, but he had a difficult relationship with his mother, and rarely saw his father (Exhibit P-D). The CSE reviewed its recommendation in November, 1994. It recommended that the child remain classified as learning disabled and continue to receive resource room services. The child’s speech continued to be inaudible, and he was described as lethargic and unmotivated (Exhibit P-E).
The child completed the seventh and eighth grades in respondent's Wagner Junior High School. He reportedly had academic difficulties and emotional problems while attending Wagner. He entered respondent's High School of Economics and Finance for the ninth grade in September, 1995. Petitioner testified that the High School of Economics and Finance had small classes, individualized attention and a mentoring program. However, her son had trouble arriving at school on time, and was failing all of his courses. In the middle of the 1995-96 school year, petitioner chose to enroll her son in the Gow School (Gow), which is a private residential school near Buffalo, New York. Petitioner asserted at the hearing that her son had flourished at Gow, which he attended for the remainder of the ninth grade and the tenth grade. Respondent agreed to reimburse petitioner for the cost of the child’s attendance at Gow (R. 63, Stipulation dated May 28, 1997).
The child’s triennial evaluation was conducted in December, 1996. The parent had also referred the child for evaluation to obtain a new placement. The child achieved a verbal IQ score of 119, a performance IQ score 120, and a full scale IQ score of 122 on the WISC-III, which placed him in the Superior Range of intellectual functioning. His weaknesses were in analysis and synthesis, which the evaluator opined were reflected in his difficulties in spelling and written expression. Projective testing indicated that the child continued to be very anxious, and he exhibited strong feelings of low self-esteem (Exhibit P-F). On standardized achievement tests, petitioner's son earned grade equivalent scores of 10.7 for letter-word identification, 12.0 for passage comprehension, 12.2 for math calculation, 14.6 for applied problems, 14.4 for science, and 11.0 for social studies. However, on the dictation test, which assesses knowledge of spelling, punctuation and word usage, the boy achieved a grade equivalent score of 4.9 (Exhibit P-G). Socially, the child was described as being pleased with his placement at Gow, where he had many friends. Petitioner reported that her relationship with the child was improving (Exhibit P-H).
On February 26, 1997, the CSE recommended that the child be re-classified as emotionally disturbed, and that he be enrolled in regular education classes with forty minutes of group counseling per week (Exhibit P-I). Notwithstanding the deficits in the boy's writing skills, the CSE did not recommend any specialized instruction for him. The CSE reconvened in April, 1997 to review the IEP. No changes were recommended (Exhibit P-J). The child attended York during the 1997-98 school year. By agreement, respondent reimbursed petitioner for her son's tuition at York (Stipulation dated August 12, 1998).
In March, 1998, the boy was evaluated by Dr. Robert J. Reese, a private psychologist. The child achieved a verbal IQ score of 117, a performance IQ score of 128 and a full-scale IQ score of 124. The boy's verbal score was in the high average range of intelligence, while his performance and full scale IQ scores were in the superior range of intelligence. Dr. Reese reported that the child’s greatest strength was his ability to recognize how two different ideas were related, and his greatest weakness was in expressive language. Projective testing revealed that the child had a need to depend on someone. It also revealed that he had feelings of inferiority, low self-esteem, and chronic anticipation of disappointment and rejection. Dr. Reese opined that the child needed to feel the presence of a strong, trustworthy personality in order to succeed. He recommended, among other things, a small school with a small, structured classroom, ongoing psychotherapy, and extended time limits on all tests. Dr. Reese also stated that the child needed to carefully plan reading and writing assignments to insure he had sufficient time for completion (Exhibit P-N).
An educational evaluation was conducted by one of the CSE's evaluators in April, 1998. The evaluator observed that the child displayed a strong sense of independence. She described him as focused, cooperative and persistent. The child achieved a grade equivalent score of 12.9 for reading comprehension, mathematics reasoning and composite mathematics and a grade equivalent score of 10.4 for numerical reasoning. In basic reading and composite reading, the child achieved grade equivalent scores of 7.0 and 11.8, respectively. The child achieved a grade equivalent score of 6.5 for spelling and composite writing, and a grade equivalent score of 7.9 in written expression. The evaluator reported that the child had to be encouraged to produce a writing sample, but eventually wrote a paragraph. She recommended that he be encouraged to write, regardless of his poor spelling (Exhibit O).
In a social history update completed in April, 1998, petitioner indicated that her son had been counseled by a social worker during the past year. She also indicated that the boy was not a behavior problem, and he was doing well academically (Exhibit P-P). The child was healthy physically (Exhibit P-R). In a July, 1998 letter to the CSE chairperson, the child’s social worker, opined that the child needed a small, self-contained structured school to gain the necessary coping skills to succeed in school (Exhibit P-R).
A notice indicated that the child’s annual review would take place on August 10, 1998 was prepared on July 31, 1998 (Exhibit P-S). The notice was not placed in the mail until August 8, 1998 (Exhibit P-T). The parent did not receive the notice until August 11, and was therefore unable to attend the meeting. She requested a new meeting, which was scheduled for August 17 (Exhibits P-V, P-W). Before it received her request, the CSE met on August 10 and recommended that the child be classified emotionally disturbed. It also recommended a general education program for him, with the related service of group counseling once per week for forty minutes (Exhibit P-U). After meeting again on August 17, the CSE recommended that the child’s classification be changed to learning disabled. It also recommended that he receive one period of resource room services per week. The testing modifications of waived time limits and separate location were also added to his individualized education program (IEP). The CSE continued to recommend group counseling once a week, but the time was reduced from forty minutes to thirty minutes (Exhibit P-X).
On August 17, 1998, the parent informed the CSE that she was placing her child in York, but she would maintain an open mind about the CSE’s recommendation. She indicated that she would observe the proposed placement upon the initiation of the school year (Exhibit P-Y). On August 26, a copy of the IEP developed on August 17 was mailed to petitioner, along with a copy of her due process rights (Exhibit P-Z). In a letter dated September 18, 1998, the parent informed the CSE that she had observed the recommended placement at respondent's Humanities High School, which she believed to be inappropriate. She requested reimbursement for her child’s tuition at York (Exhibit P-AA).
After several adjournments, the hearing was held on February 23, 1999 and March 9, 1999. Petitioner submitted documentation indicating that her son had an overall average of 83 at York. He achieved averages of 77 in English essay writing, 90 in honors calculus, 84 in history of philosophy, 79 in psychology, 90 in computer, 73 in physical education, and he failed a community service requirement (Exhibit P-DD). The boy’s behavior was generally described as appropriate, and his effort varied among classes. The parent also submitted a social history update indicating that the child achieved a score of 1150 on his SATs, and he had failed social studies the previous semester. The child ultimately completed his community service requirement at Mount Sinai Hospital, where he performed computer work. Respondent's representative at the hearing conceded that respondent could not demonstrate that it had offered to provide an appropriate placement for the boy because the students in the recommended resource room class at the Humanities High School were not appropriately grouped for instructional purposes. However, the representative asserted that the boy had limited needs which could have been met in a resource room program.
In his decision which was dated April 30, 1999, the hearing officer found that both parties agreed that the boy had deficits in his writing and spelling skills which required remediation. He further found that the boy did not need, nor had he in fact received, a full-time special education program to address his special education needs. He rejected petitioner's contention that her son needed to be educated in the small classes which York provided. The hearing officer found that the child was attending exclusively general education classes, and he only received indirect special education services from the principal of York. The hearing officer opined that the services provided to the child at York were analogous to consultant teacher services, and he awarded petitioner reimbursement for 20% of her child’s tuition at York to approximate the cost of the indirect special education the boy had received at York.
Petitioner challenges the hearing officer’s conclusion that she was entitled to partial tuition reimbursement. Petitioner asserts that she is entitled to full 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 ). 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).
In this instance, respondent conceded that it had not provided an appropriate placement for the boy, and the hearing officer found that petitioner had met her burden of proof with regard to the appropriateness of York's services. Petitioner's appeal is therefore limited to the question of whether equitable considerations entitle her to full tuition reimbursement. Petitioner contends that the hearing officer exceeded his jurisdiction by describing the services provided at York as being "in the nature of consultant teacher-type services" in the absence of any evidence by respondent as to the nature of a consultant teacher's duties. I disagree with petitioner. Consultant teacher services are defined by regulation (8 NYCRR 200.1 [l]). The hearing officer was merely drawing an analogy between the manner in which York provided specialized services to petitioner's son and consultant teacher services in a public school. He did not conclude that the student was receiving consultant teacher services.
Petitioner contends that the hearing officer improperly found that she had not provided reports of private evaluations to the CSE in a timely manner. Although he indicated that he had reservations about the extent of petitioner's cooperation with the CSE, the hearing officer found that the parent generally cooperated with the CSE, and had provided the evaluations in a timely fashion. For the purposes of this appeal, I do not review the hearing officer's determination with regard to petitioner's cooperation with the CSE because he did not premise his decision to award partial tuition reimbursement upon her cooperation with the CSE. The parent also contends that the hearing officer did not fully consider that the CSE had repeatedly failed to provide an appropriate placement for the child. I must point out that respondent has already reimbursed petitioner for her expenditures for tuition in the prior school year. I find that respondent's alleged failures in prior years are therefore not determinative of the equities in this proceeding.
As was noted by the hearing officer, the reasonableness of the cost of the services which a parent has obtained for her child may be considered in determining whether equitable considerations support the parent's claim for tuition reimbursement (Florence County School District Four et al. v. Carter by Carter, supra; Application of a Child with a Disability, Appeal No. 96-8; Application of a Child with a Disability, Appeal No. 98-6; Application of a Child with a Disability, Appeal No. 99-28). The hearing officer found that there was no evidence of the use of any specialized techniques at York to address the boy's emotional needs. With respect to the boy's deficits in spelling and writing, the hearing officer noted that York's principal, who is a certified special education teacher, had testified that York had used the IEP prepared by the CSE to help plan interventions to improve the boy's spelling skills, and that the York staff had worked to improve his writing skills. The principal, who was the boy's writing teacher during the 1997-98 school year and who had advised the boy's teachers during the 1998-99 school year, described the techniques which had been used to improve the boy's ability to organize his ideas prior to writing them. He testified that he had made sure that the boy's teachers used graphic organizers when they required him to do written assignments in class, or as homework (Transcript, pages 85-86). The boy's teachers also created worksheets which taught the boy the rules of spelling, and created a data base of the words which were to be spelled correctly using those rules. The boy's progress in spelling was tested in the content areas, in addition to testing his performance in mastering the content areas. The York principal also testified that the boy's ability to write and spell had improved as a result of the specialized assistance which York had provided to him.
The hearing officer noted that the boy was instructed in four academic and one non-academic subject at York during the 1998-99 school year. He found that the cost of the specialized services which the boy received at York could be equitably equated to one period per day. Therefore, he limited petitioner's recovery of tuition to one-fifth of the cost of the boy's tuition.
Although I concur with the hearing officer's determination that petitioner's son did not require a full-time special education program, and that the boy was in fact not receiving such a program at York, I nevertheless cannot agree with his determination to limit petitioner's recovery of tuition to 20% of the full tuition at York. Such an award may be appropriate when the specialized instruction which is provided to a child in a private school can be attributed to a specific school program (Application of a Child with a Disability, Appeal No. 99-28). In this instance, the specialized techniques were used to improve his writing and spelling throughout the school day in the boy's four academic subjects. It is not possible on the record before me to calculate the fair value of the specialized assistance which York provided to the boy. The hearing officer's determination that the cost of those services equaled 20 percent of the tuition is, in my judgment, a good guess, but it is no more than a guess. It is respondent's burden to show that the amount of tuition sought by a parent is excessive (Application of the Board of Education of the City School District of the City of New York, Appeal No. 96-11; Application of a Child with a Disability, Appeal No. 97-10). Upon the record before me, I am constrained to find that there is no factual basis for the hearing officer's conclusion that petitioner's recovery of her tuition expenditure should be limited to 20 percent.
THE APPEAL IS SUSTAINED.
IT IS ORDERED that the hearing officer's decision to the extent it restricted petitioner to receiving 20 percent of the cost of her son's tuition at York during the 1998-99 school year is hereby annulled, and;
IT IS FURTHER ORDERED that respondent shall reimburse petitioner for the cost of her son's tuition at York during the 1998-99 school year, upon petitioner's presentation of proof of payment of such tuition.