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Application of a CHILD WITH A DISABILITY, by her parents, 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


Neal H. Rosenberg, Esq., attorney for petitioner

Hon. Michael D. Hess, Corporation Counsel, attorney for respondent, Georgia M. Pestana, Esq., of counsel


       Petitioners appeal from the decision of an impartial hearing officer which denied their request for reimbursement for the total cost of their daughter's tuition at City and Country Day School (City and Country), a regular education private school in Manhattan, for the 1998-99 school year. The appeal must be dismissed.

        Petitioners’ daughter was five years old and attending City and Country at the time of the hearing. While the record is incomplete with respect to the child’s educational history she was reportedly classified as a preschool student with a disability, and received special education itinerant teacher (SEIT) services and related services of speech/language and occupational therapy. In January, 1998, when she was four years old, the child was reportedly referred to the committee on special education (CSE) to determine an appropriate program for kindergarten during the 1998-99 school year.

        In an updated educational progress report dated January 15, 1998 (Exhibit 4), the evaluator noted that the child had difficulty attending and participating in large group activities. She indicated that the child would "shut down" and appear to be deep in thought. She further indicated that the child responded positively when her special education teacher was present, and noted that the child was alert, cooperative and responsive when the activity was interesting to her. The evaluator reported that the child’s cognitive abilities were scattered between a 3-0 and 6-0 age level. She had difficulty with quantitative concepts, directional and positional concepts, and knowing what to do in different situations. The child’s speech/language abilities were described as being between a 2-0 to 4-0 age level. She was able to express clearly her wants and needs, and respond to questions in group situations. The child’s gross motor and self-help skills were assessed to be at an age appropriate level, while her fine motor functioning was scattered between a 3-0 to 5-0 age level, with pre-handwriting skills at the lower end. The child was assessed to be functioning between a 2-6 and 4-0 age level in her social and emotional development. The evaluator noted that child’s special education teacher was assisting the child in finding alternative ways to handle new situations. Though the child had made progress with her social interaction, her teachers continued to express concern about her skills in this area. The evaluator recommended that the child continue to receive consultant teacher and speech/language services to enable her to reach age appropriate developmental milestones in the social, emotional, and speech/language domains. She opined that it was important for the child to remain in a mainstream classroom with children her own age to afford her the opportunity to model spontaneous communication and developmental play skills.

        On January 18, 1998, a social history update was completed by the child’s SEIT who reported that the child attended City and Country five days per week where she received SEIT services five hours per week (Exhibit 2). The child also received speech/language therapy three times per week for 30 minutes and occupational therapy once per week for 60 minutes. Neither the speech/language nor occupational therapy was provided at City and Country. The child’s teachers indicated that the child had made good progress, but there were continuing concerns regarding her play skills and language development. They believed that the child should remain at City and Country with support services to ensure continued progress.

        In a January 22, 1998 occupational therapy progress and discharge note, the child’s occupational therapist indicated that the child had been receiving 60 minutes of occupational therapy once per week (Exhibit 6). The therapist reported that the child had made great progress in the areas of sensory processing and modulation, gross motor skills, fine motor skills and social interaction. She also reported that the child’s skills were at an appropriate age level, and that she was able to participate in all age appropriate classroom and playground activities. The occupational therapist suggested that refinement of the quality of the child’s movements could occur in a more social environment, such as movement class and the playground.

        A classroom observation was conducted on February 11, 1998 by one of the district’s social workers who reported that the child transitioned smoothly from rest time and followed the teacher’s directives (Exhibit 8). The social worker noted that while the child interacted with other students nicely and appropriately during free play, none of her play seemed particularly engaged. She described the child as without focus or genuine enthusiasm. The child’s teacher reported that the child’s focus had improved, that her behavior appeared appropriate and that she learned well by imitating (Exhibit 7). She noted that the child’s SEIT had been essential to her progress because the child required one-to-one support. However, the child also benefited from a regular education setting.

        In a psychological evaluation conducted on February 12, 1998 (Exhibit 3), the school psychologist reported that in a prior evaluation completed two years earlier in March, 1996, the child had achieved an MDI score of 62 on the Bayley Scales of Infant Development, which, she noted, corresponded to an age equivalent of 24 months and suggested a significant to mild delay. The child’s adaptive functioning was assessed in 1996 to be in the moderately low range overall, and there was some immediate and delayed echolalia, as well as a perseverative quality to her language and play. The child appeared interested in all tasks presented, was motivated to do well and responded well to praise and encouragement. In the prior evaluation, the child was able to count aloud to 100, recognize letters, numbers, shapes and colors, and sing the alphabet. Her speech was intelligible, but some mild articulation problems were noted.

        On the Stanford-Binet Intelligence Scale: Fourth Edition which was administered to her in February, 1998, the child was assessed to be functioning in the average range of cognitive abilities, having achieved standard area scores ranging from average to low average. The school psychologist noted that the child's scores suggested an overall improvement in functioning from the previous evaluation. The child’s overall verbal skills, quantitative reasoning skills, and short-term memory skills were assessed to be in the average range, while her comprehension and abstract/visual reasoning skills were in the low average range. The Vineland Adaptive Behavior Scales - Interview Edition (VABS) was completed with the child’s mother as the informant. The child earned an adaptive behavior composite of 94 (4-6 age equivalent), which suggested that her overall development was adequate. The school psychologist noted that the child had improved since the previous evaluation on which the child scored in the moderately low range in communication, socialization and daily living skills. However, she reported that the child continued to exhibit delays in the area of expressive language.

        In a letter dated March 1, 1998 to the CSE (Exhibit 13), the child’s teacher indicated that she was assisted in her classroom of 16 children by a full-time assistant teacher, as well as a student teacher. The teacher reported that child had responded well in that environment. She noted that the child had developed a strong sense of membership in the group, that she had become attentive and involved in meeting times, and that she had become more verbal. The teacher further noted that the child had benefited from watching other children play. She opined that a mainstream setting was crucial for the child’s continued successful development. She noted that the small class size enabled the child to work out social issues in a manner that was not too overwhelming, and opined that a larger classroom environment would be detrimental to the child’s social and academic development.

        On April 9, 1998, the CSE recommended that the child be classified as speech impaired (Exhibit 1). The child’s classification is not disputed in this proceeding, and I make no determination of its appropriateness (Hiller v. Bd. of Ed. Brunswick CSD et al., 674 F. Supp. 73 [N.D.N.Y., 1987]). It further recommended that the child be placed in a regular education classroom with 300 minutes of consultant teacher services per week, and that she receive speech/language therapy. The child’s parents requested an impartial hearing on April 29, 1998 because they believed that the recommended placement was inappropriate (Exhibit 11).

        On September 9, 1998, respondent advised the child’s parents that a special education placement for their daughter was not yet available, and suggested that they obtain appropriate special education services at public expense (Exhibit 12). The child began kindergarten at City and Country for the 1998-99 school year. In addition to speech/language therapy, the child began receiving consultant teacher services in October, 1998. Both services were provided at respondent’s expense (Paragraph 70 of the petition).

        The impartial hearing began on October 26, 1998, but was adjourned by agreement of the parties. A second adjournment was granted upon consent on November 24, 1998. The hearing was held on February 11, 1999. The hearing officer rendered her decision on May 4, 1999. She found that the child’s individualized education program (IEP) was flawed because it did not include dates for mastery of the annual goals and short-term instructional objectives. The hearing officer held that respondent had failed to recommend an appropriate placement for the child because of the flawed IEP. She further found that that the child had made progress at City and Country, and that it was an appropriate placement. However, she held that petitioners' right to reimbursement was limited to the cost of any special education or related service which had been provided to the child. She directed petitioners to submit a statement from City and Country, itemizing the cost of special education and related services which had been given to the child, and ordered respondent to reimburse petitioners for any such cost.

        Petitioners appeal from the hearing officer’s decision. They assert that their daughter is speech impaired and has a "malbehavior" problem which requires that she receive full-time special education. I note that at the hearing the child's mother testified that her child did not need the restrictive setting of a special education class (Transcript, page 46). Petitioners contend that the hearing officer found that City and Country was an appropriate placement for their child, and that she erred in limiting their reimbursement to the cost of the special education and related services provided by the private school.

        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 Country 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.e., the appropriateness of the recommended program, the hearing officer found that respondent failed to meet its burden of demonstrating the appropriateness of the recommended program because the IEP was flawed. I reach the same conclusion, but on different grounds. During the hearing, the school psychologist admitted that no parent member was present at the CSE meeting (Transcript p. 27). While respondent asserts that a parent member was not required, I note that there is no evidence that petitioners requested that a parent member not participate (Section 4402 [1][b][1][a] of the Education Law). 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). Additionally, I note that in September, 1998, respondent advised petitioners that it did not yet have a placement available for their daughter. A placement recommendation which cannot be implemented is not an appropriate placement (Application of a Child with a Handicapping Condition, Appeal No. 92-33).

        With respect to the second criterion for an award of tuition reimbursement, petitioners bear the burden of proof with regard to the appropriateness of the services which they obtained for the child at City and Country 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" [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 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 hearing officer found that the child had made some progress at City and Country and determined that that placement was appropriate. In doing so, she did not find that it would be inappropriate to educate the child in a regular education class in a large school, as petitioners assert in their petition. Although the parties agreed at the hearing that the child's special education needs could be met in a regular education classroom with a consultant teacher and related services of speech/language therapy, petitioners nevertheless assert that City and Country provided a program of specially designed instruction to their daughter by modifying the school's general education curriculum, and by providing instruction in a class with fewer children than would be the case if she attended a public school. I find that the record does not support their assertion. However, that does not alter the fact that the hearing officer found that the child's placement in City and Country was appropriate.

        The third criterion for an award of tuition reimbursement is whether equitable considerations support petitioners’ claim. The reasonableness of the cost of the services which the parents have obtained for their child may be considered in determining whether equitable considerations support the parents' claim for tuition reimbursement (Florence County School District Four et al. v. Carter by CartersupraApplication of a Child with a Disability, Appeal No. 98-6; Application of a Child with a Disability, Appeal No. 99-28). As noted above, the child’s special education needs were being addressed through consultant teacher services and speech/language therapy, both of which were provided at respondent’s expense. There is nothing in the record to show that City and Country provided any special education services to the child, or modified its regular education program to address the child’s individual needs beyond that which would be done in any educational program. In this case, the cost of the child’s special education services can be, and were, readily determined. There is no obligation under the Individuals with Disabilities Education Act (20 USC 1400 et seq., hereinafter referred to as IDEA) to provide reimbursement to parents for expenses they incur to have their child attend a regular education private school. As the child was receiving appropriate special education services at respondent’s expense, I find that equitable considerations do not support petitioners’ claim. Accordingly, they are not entitled to tuition reimbursement.

        I have considered petitioners’ other claims which I find to be without merit.


Topical Index

CSE ProcessCSE Composition
Educational PlacementConsultant Teacher
Equitable ConsiderationsExcessive/Unnecessary Costs/Services
Implementation/Assigned SchoolDeviation from IEP/Failure to Implement IEP Services
Implementation/Assigned SchoolTimeliness of School Assignment/FNR
Parent Appeal
Related ServicesSpeech-Language Therapy (Pathology)
Unilateral PlacementAdequacy of Instruction
Unilateral PlacementProgress