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Application of a CHILD WITH A DISABILITY, by his 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 Howard Rosenberg, Esq., attorney for petitioners

Hon. Michael D. Hess, Corporation Counsel, attorney for respondent, Martha Calhoun, Esq., of counsel


      Petitioners appeal from the decision of an impartial hearing officer denying their request for reimbursement of their child’s tuition at the Stephen Gaynor School (Gaynor) for the 1998-99 school year. Gaynor is a private school in Manhattan serving students with learning disabilities. It is not on the State Education Department's list of schools approved to provide instruction to special education students. The appeal must be dismissed.

        I first must address a procedural issue. Respondent requested, and was granted, an extension to file an answer until August 2, 1999. The answer was not received by the Office of State Review until December 12, 1999. Petitioners also did not receive the answer until December, 1999. Respondent offers a file copy of its answer which includes an affidavit of service by mail by a former summer intern indicating that service was effected on August 6, 1999. In the absence of any evidence of harm to petitioners caused by the delay in receiving the answer, I will accept the replacement copy of the answer.

        I note that petitioners have asked me to consider two documents annexed to their petition although neither document was in the record before the hearing officer. Although both documents were available at the time of the hearing and could have been entered into the record, I will consider them, in the absence of an objection by respondent.

        At the time of the hearing, the child was ten-years old, and was classified as learning disabled (Exhibit SD-11). He had been affected by environmental allergies for many years, but his allergies had been resolved at the time of the hearing (Exhibit SD-10). The child began to attend preschool when he was three years old (Exhibit SD-2). About that time, petitioners moved into an apartment near P.S. 87. The mother testified that she and her husband had intended to send their child to P.S. 87 for kindergarten (R. 89). However, the child remained in preschool an extra year because his preschool teacher believed that the child would feel overwhelmed in P.S. 87. While in preschool, the child received private speech/language therapy. He started kindergarten at Columbia Grammar (Columbia), in 1994. The child's private speech/language therapy was discontinued because Columbia provided such service (Exhibit SD-2).

        While in the second grade at Columbia during the 1996-97 school year, the child was referred to respondent's CSE by Columbia and his parents. He was evaluated in February, 1997 by a school psychologist, who noted that the boy had been receiving individual instruction twice per day in Columbia's Learning Resource Center, and individual speech/language therapy twice per week. He reportedly had difficulty mastering sound/symbol correspondence, which affected his ability to read. Teachers at Columbia reported that the child would exhibit somatic symptoms when he felt overwhelmed, which prompted them to refer the child to Columbia's Learning Resource Center (Exhibit SD-2). In February, 1997, petitioners' son achieved a verbal IQ score of 102, a performance IQ score of 84, and a full-scale IQ score of 93. The evaluator stated that the eighteen point disparity between verbal and performance scores reflected a perception based learning disability. There was significant intratest scatter as well as intertest scatter, in the child's scores on the IQ test. The child's age equivalent score on the Bender Gestalt Test of Visual Motor Integration was approximately two years below his actual age. Projective testing revealed that the child was aware of his learning deficits, and he had developed low self esteem as a result (Exhibit SD-2). For the 1997-98 school year, the CSE reportedly recommended that the child be placed in a self-contained classroom for gifted children located at P.S. 163 (R. 86).

        Petitioners rejected that placement. They chose instead to send their child to Gaynor, after Columbia informed petitioners that their son could not return for third grade (Exhibit SD-2). In November, 1997, the child was re-evaluated by an educational evaluator in preparation for the CSE's annual review. At the time of the evaluation, the boy was in the third grade. However, the evaluator was unaware of that fact, and erroneously scored the educational evaluation as though the child was in second grade. She later created an addendum to her evaluation with the appropriate scores, but the addendum was not completed until two days after the CSE convened in May, 1998 (R. 10). In her initial report (Exhibit 15), the evaluator reported that petitioners' son had achieved grade equivalent (and standard) scores of 1.6 (90) for broad reading, placing him in the 25th percentile. For broad math, he achieved grade equivalent (and standard) scores of 2.1 (103), placing him in the 58th percentile. The child's broad written language skills were at a grade equivalent of 1.6, with a standard score of 95, placing him in the 38th percentile. In broad knowledge, the child achieved grade equivalent (and standard) scores of 7.0 (156), placing him in the ninety-ninth percentile within the superior range. At the hearing, the evaluator testified that the discrepancies in the scores were highly unusual and they indicated a significant learning disability (R. 20).

        A speech/language evaluation was also conducted on November, 1997. At the time of the evaluation, the child was receiving speech/language therapy two times per week for thirty minutes in a group of three. Using the Clinical Evaluation of Language Fundamentals, the evaluator found that the child was functioning at the average range in language development. The boy's spontaneous speech was accurate, and his fluency, rate, and articulation were within the normal range. The CSE's evaluator recommended that the child's continuing speech/language therapy focus upon helping him to generalize his skills (Exhibit SD-4). The child's speech/language therapist at Gaynor reported that the child's oral comprehension, inferencing, and predicting skills had improved, but he needed to improve his ability to follow directions. The therapist stated that the child had an abundant amount of knowledge and a strong expressive vocabulary, but had trouble retrieving specific words. The therapist also noted that the child preferred to be alone, although he was well liked by his peers. She recommended that the child continue his speech/language program with an emphasis on social interaction (Exhibit SD-5).

        An occupational therapy evaluation was conducted in December, 1997. The evaluator found that the child's strengths were his attending skills, functional motor skills, and self-help skills. She found his weaknesses to be decreased fine motor skills, dysgraphia, and visual integration. The evaluator recommended that the child receive individual occupational therapy two times per week for thirty minutes (Exhibit SD-7). The child was observed in the classroom in April, 1998. He followed along with the rest of the class, and he sporadically answered questions. His behavior was appropriate, and he appeared to get along with the teacher and other students (Exhibit SD-6). A school report from January, 1998 indicated that the child needed to improve his neatness and accuracy, but he was progressing in general. He was described as a bright child who worked hard and had become more interactive with peers over the course of the school year (Exhibit SD-9).

        On May 14, 1998, the CSE recommended that the child remain classified as learning disabled for the 1998-99 school year. The educational evaluator present at the hearing testified that the CSE was aware that the educational evaluation had been improperly scored. She stated that the mother chose to proceed with the meeting, and the CSE reviewed that data qualitatively (R. 27). The CSE recommended that the child be placed in a self-contained class with a student-teacher ratio of 15:1, and that he receive 30 minutes of individual occupational therapy two times per week. It did not recommend that he receive speech/language therapy. Testing modifications on the child's individualized education program (IEP) included waived or doubled time limits, special testing locations, directions read and re-read aloud and questions read aloud (Exhibit SD-11). On June 19, 1998, respondent offered a placement for the 1998-99 school year in a MIS-I class at respondent's P.S. 307 (Exhibit 12).

        Petitioners enrolled their son in Gaynor for the 1998-99 school year. On or about November 12, 1998, they requested an impartial hearing for the purpose of obtaining an award of tuition reimbursement for the 1998-99 school year. The hearing was adjourned upon consent until March 3, 1999. It was held on that date. At the hearing, a profile of the recommended placement was introduced which indicated that eight students were in the class, although fifteen could be accommodated. All of the students were within the required three year age range. One student was reading at a grade level between 0.5 and 1.5. Four students were reading at a grade level between 1.6 and 2.5, and three students were reading at grade level between 2.6 and 3.5. In math, four students were functioning at a grade level between 2.6 and 3.5. The other four students were functioning at a grade level between 3.6 and 4.5. Every student in the class was functioning below grade level in written language skills. Four students had age appropriate oral-receptive language skills, and five students had age appropriate oral-expressive language skills. One child in the class had above average oral-expressive language skills. All of the students had average learning characteristics, age appropriate physical development, and age appropriate social development. Two students received occupational therapy. Seven students received counseling and seven students received speech/language therapy (Exhibit SD-13). All the students participated in mainstream physical education. Respondent's site coordinator testified that about 950 students attended the school, which is located across the street from the Museum of Natural History. He stated that the class often took advantage of the opportunities offered at the museum, and that the teacher had also arranged a program exposing the students to the Metropolitan Opera (R. 48). The coordinator testified that the teacher utilized a multi-sensory approach, and he felt that the child would benefit from this method (R.49). He further testified that the child's IEP goals could be implemented in the recommended MIS-I class (R. 51).

        The child's teacher from Gaynor testified that the child needed a full time special education program to address the special issues he experienced because of dyslexia. She described the child as withdrawn and introverted and having trouble with expressive language (R. 64, 65). She described her class as very structured, incorporating a multi-sensory approach. She helped the child with writing by using visual cues, and she would give him special projects in areas where he excelled (R. 65, 69). She testified that nine students were in her class, and she received full-time help from a teaching assistant (R. 67). At Gaynor, petitioners’ child received speech/language services once a week, occupational therapy two times a week, reading remediation once a week, and assistance from a language specialist in writing and social studies (R. 71). The teacher opined that it would be difficult for the child to function in a class larger than his class at Gaynor. She stated that the child would often become anxious in class, he would cry and his eyes would swell. She responded to this by comforting him and giving him positive reinforcement. She noted that the child’s avoidance of social situations did not impact his academic performance (R. 79).

        The progress report from Gaynor indicated that, in the middle of the 1998-99 school year, the child's grasp of phonics and his ability to recognize letters and words was at a 2.3 grade level. Reading comprehension was at a 2.5 grade level, listening comprehension was at a 3.3 grade level, and spelling was at a 2.3 grade level. The child's teacher reported that his writing was improving. In math, the child was functioning at a 3.0 grade level. While the child still preferred to be alone at times, he was reportedly functioning well socially. In addition, the child was learning to follow directions, although he sporadically requested that they be repeated (Exhibit P-A).

        In her decision which was rendered on May 13, 1999, the hearing officer found that the recommended MIS-I program was appropriate to meet the child's educational needs. However, she further found that the CSE should have recommended that the child receive the related service of speech/language therapy during the 1998-99 school year. She ordered the CSE to amend the child's IEP to include speech/language therapy. The hearing officer declined to order respondent to reimburse petitioners for the cost of the speech/language therapy provided by Gaynor because the cost had reportedly not been separated by the school in its tuition bill.

        Petitioners challenge the hearing officer's determination that the Board of Education met its burden of proving that it had offered to provide an appropriate educational placement to their son for the 1998-99 school year. 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 [1982]), and that the recommended program is the least restrictive environment for the child (34 CFR 300.550 [b]; 8 NYCRR 200.6[a][1]). 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).

        Petitioners assert that their child's IEP was defective because it was not amended to reflect the change in the scoring of the child's performance on the Woodcock-Johnson – Revised Achievement Test which was administered to him in November, 1997. They also contend that the CSE made its placement recommendation without regard to any of their son's achievement test scores. While I agree with petitioners that the IEP which was mailed to them after the CSE meeting should have reflected the corrected scoring, I am not persuaded that this mistake affords a basis for annulling the CSE's recommendation. I must note that the child had been recently observed at Gaynor, and that the CSE had a detailed progress report from Gaynor. In addition, the child's teacher at Gaynor participated by telephone in the CSE meeting. The child's raw scores and grade equivalent scores on the achievement test did not change. His standard and percentile scores did decrease when the boy's correct actual grade level was used to compute those two scores. While the standard and percentile scores indicated that there was a more significant discrepancy between the child's expected and actual achievement, it does not follow that a different placement was called for. The CSE recommended a full-time special education placement in a class with youngsters whose reading, writing, and mathematical achievement was similar to that of petitioner's son. Therefore, I find that petitioners' son would have suitably been grouped for instructional purposes in the proposed class.

        Petitioners also challenge the appropriateness of their son's IEP annual goals, especially with regard to his annual goals for social studies and science. They point out that that the IEP goals for those subjects indicated that their son would successfully complete fourth grade social studies and science courses "parallel to the mainstream", while their son's Woodcock Johnson – Revised scores for social studies and science were at the sixth and twelfth grade levels, respectively. While the child has obviously acquired some significant factual knowledge in these subject areas, it does not follow that his IEP goals are necessarily inappropriate, given his weak basic academic skills and his achievement as indicated in the mid-year report from Gaynor (Exhibit SD-9).

        Petitioners also challenge the recommended placement of their son in a MIS-I class at P.S. 307 as being entirely inappropriate for their son, and contrary to the evidence regarding his social and emotional needs. I disagree. Although the child is reportedly anxious in social situations, no evidence was presented to suggest that the child cannot function in a class of fifteen students. His teacher from Gaynor opined that the child's social anxiety did not impact upon his academic performance at Gaynor. I find that the child's needs are similar to the needs of the children in the placement recommended by the CSE. If the child had attended P.S. 307, he would have been instructed in a small group in all areas, except for lunch and physical education. Petitioners point to the difficult time which their son reportedly had in a regular education preschool physical education class as proof that it would have been inappropriate for him to attend regular education physical education classes at P. 307. However, I do not find that the child's preschool experience is instructive of his present condition. While I understand petitioners' concern about the child's anxiety in social situations, I must point out that respondent is obligated to offer a placement which is in the least restrictive environment for each child. Upon the facts presented to me, I find that it did so with respect to petitioners' son.

        I have considered petitioners' other contentions which I find to be without merit.


Topical Index

Annual Goals
CSE ProcessSufficiency of Evaluative Info
Educational PlacementSpecial Class
Least Restrictive Environment (LRE)
Parent Appeal
Preliminary MattersAdditional Evidence/Record Issues
Preliminary MattersPleadingsService of Pleadings
Present Levels of Performance
Related ServicesOccupational Therapy
ReliefReimbursement (Tuition, Private Services)