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 denying her request for reimbursement of her son’s tuition at the Staten Island Montessori School (Montessori) for the 1998-99 school year. Montessori is a private school in Staten Island that does not specifically serve special education students, and it has not been approved by the State Education Department to provide instruction to children with disabilities. The appeal must be sustained in part.
Petitioner's child was nine-years-old at the time the decision was issued. He was originally referred by his parents to the Committee on Special Education (CSE) for a speech/language evaluation in January, 1997, when he was in the first grade at respondent's P.S. 3 (Exhibit SD-2). A social history conducted in March, 1997 indicated that the child had experienced difficulty with phonics and distractibility since kindergarten. In the middle of first grade, the child was moved to a new class. Petitioners hired a tutor to work on phonics with the child. In addition, the child began attending an after-school remedial program two days a week (Exhibit SD-11).
Teacher reports from March, 1997 indicated that the child had difficulty following directions, and he would often tune out. The child's teacher reported that the boy's homework assignments were correctly done, but the child would not complete assignments in class. The child would seek out the teacher's help on difficult assignments, and the two would often do an assignment together while the other students worked independently. The teacher reported that the child would often withdraw from participating in class, and he still did not know the names of all of his classmates. The other students had difficulty understanding petitioner's son (Exhibit SD-25).
A psychological evaluation was conducted on March 20, 1997. On the Stanford-Binet Intelligence Scale, the child achieved a verbal reasoning score in the sixtieth percentile, an abstract/visual reasoning score in the sixty-seventh percentile, a quantitative reasoning score in the fifty-fifth percentile, and short-term memory score in the thirty-eighth percentile. His test composite score was in the fifty-fifth percentile, placing his overall intellectual functioning in the average range. The evaluator opined that the child's overall intellectual functioning might be higher than his scores indicated. Emotionally, the child appeared to be pleasant, but impulsive and immature. He exhibited a vivid imagination, which reportedly helped him compensate for his feelings of inadequacy. The evaluator opined that the child did not have a learning disability, but she did recommend that he receive a speech/language evaluation. She noted that the child did not exhibit motivation or acceptance for school (Exhibit SD-14).
The child was found to be in good condition by a physician on March 31, 1997 (Exhibit SD-22). An educational evaluation was conducted on April 2, 1997 when the child was in first grade. The evaluator found the child's reading skills to be at a grade equivalent of K.1, which was in the first percentile. His math skills were at a grade equivalent of 1.8, placing him in the sixty-fifth percentile. On the dictation test, the child achieved a grade equivalent of K.5, which was in the second percentile. The child's gross motor skills were below average, and his visual-motor integration skills were slightly below average (Exhibit SD-16).
In a speech/language evaluation which was conducted on April 7, 1997, the boy was found to have generally average receptive language skills, but a slight delay was noted in his ability to process elaborate sentences. The evaluator opined that the child's inability to process complex information might have been a result of his inability to attend and listen. When the child's language development was tested, he achieved an oral vocabulary score in the twenty-fifth percentile, a sentence imitation score in the fourth percentile, and a grammatic completion score in the first percentile. His expressive language skills fell two years below age expectancy. The evaluator recommended that the child receive speech/language therapy twice per week for thirty minutes in a group with a student-teacher ratio of 3:1 (Exhibit 18).
The child reportedly did not participate in his class, when observed in April 1997 (Exhibit 21). On April 14, 1997, the CSE classified the child as speech impaired. The CSE recommended that he receive speech/language therapy two times per week for thirty minutes in a group with a student-teacher ratio of 3:1, and that the child attend mainstream academic classes (Exhibit SD-10).
The child began to attend the Sylvan Learning Center (Sylvan) in the Summer of 1997 and continued through the Fall (Exhibit SD-12). In October, 1997, the child's teacher met with the director of Sylvan in an attempt to coordinate curricula (Exhibit SD-24). The CSE met in November, 1997 and recommended a continuation of the child's program (Exhibit SD-10). In December, 1997, the child's parent wrote a letter to the CSE requesting that the child be reevaluated and considered for resource room services (Exhibit SD-3). The child was placed in an at-risk resource room prior to reevaluation (Exhibit SD-15, R. 26). The child also received the services of an Education Related Special Services teacher and a reading volunteer (R. 19). In January, 1998, the child's speech/language therapist reported that the child had made some mild progress in speech, but he had not yet incorporated his newly acquired skills into general use (Exhibit SD-19).
An educational evaluation was conducted on February 4, 1998. The child's reading and writing skills were found to be significantly below grade expectancy. On the Woodcock-Johnson Psychoeducational Battery (W-J), the child achieved a grade equivalent score of K.9 for broad reading, which placed him in the 0.3 percentile. On the W-J Letter-Word Identification Test, the child achieved a grade equivalent of K.9, which placed him in the first percentile. On the W-J Passage Comprehension Test, the child achieved a grade equivalent of K.9, placing him in the 0.2 percentile. On the W-J Dictation test, the child achieved a grade equivalent of K.7, placing him in the 0.1 percentile. The child's broad math skills and his general knowledge were reported to be at an early second grade level. His visual motor integration skills were reported to be well below average. The educational evaluator reported that it was often difficult to understand the child's speech because of his articulation difficulties (Exhibit SD-17).
Dr. Leonard Pisano completed a psychological examination of the child in February, 1998. Dr. Pisano reported that the child's expressive language was difficult to understand because of numerous errors of articulation, syntax and use of sentences. He observed the boy in his class, where the child exhibited facial mannerisms, body language and distracting behavior indicating a high level of discomfort, frustration and feelings of anticipated failure. Projective testing revealed that the child had aggressive fantasies. Dr. Pisano opined that the child's fantasies allowed him to feel powerful and in control, which was the opposite of how he felt at school. He further opined that the child's reading difficulty was consistent with a diagnosis of dyslexia. He also noted that the child exhibited written deficits caused by graphomotor/visual-perceptual problems and poor encoding skills. In addition, the child displayed feelings of inadequacy and hopelessness related to his failure to master reading and writing. Dr. Pisano recommended that the boy receive two periods of resource room per day until the end of the school year, and he advised the CSE to consider placing the boy in a self-contained class for the 1998-99 school year. Dr. Pisano also suggested that the parents consider a multi-sensory approach to reading such as the Orton-Gillingham method, and he recommended outside counseling for the child. Dr. Pisano also encouraged the parents educate themselves more thoroughly about learning disabilities. Classroom recommendations included compensatory skill development, such as use of a computer, and accommodations, such as shortened assignments, in order to raise the child's sense of capability and independence (Exhibit SD-15).
In February, 1998, petitioners reported that they were spending more time with the child, and that he seemed better able to control himself. However, the child's negativity and feelings of hopelessness had reportedly increased. His health was good, and his ear infections had begun to subside. The parents reported that they were frustrated that the child had not received more services when he had been referred to the CSE in the previous year (Exhibit SD-12).
The School Based Support Team (SBST) held an Educational Planning Conference on February 13, 1998. The SBST recommended that the child receive supplemental instructional (resource room) services for two periods per day for the remainder of the 1997-98 school year, and a special education class placement during the 1998-99 school year (Exhibit SD-7). On February 24, 1998, the CSE recommended that the boy receive resource room services twice per day, and speech/language therapy two times per week for thirty minutes, with a student-teacher ratio of 3:1 (Exhibit SD-9). The CSE review sheet indicated that the child was also being tutored at home and was receiving speech therapy at home twice a week (Exhibit SD-6).
Petitioner accepted the CSE's recommendations, and the boy received the recommended services. On the boy's report card, his teacher indicated that although he had worked very hard, his reading and writing skills were well below grade level. She noted that petitioner's son listened well, but had difficulty expressing his thoughts clearly (Exhibit SD-28).
At its February 24 meeting, the CSE also recommended that the child remain classified as learning disabled, and that he be placed in a self-contained MIS-I class with a student-teacher ratio of 15:1 for the 1998-99 school year. It indicated that the child should be mainstreamed for lunch, assemblies and physical education. The CSE further recommended that he receive speech/language therapy twice per week for thirty minutes with the student-teacher ratio of 3:1 (Exhibit SD-8). The CSE reportedly offered the parent the choice of a placement in a self-contained class in three different schools (R. 78). Petitioner visited two of the schools in the spring of 1998. She testified that at the first school the students "were in a closet with no windows ". She objected to the second school, which was a barrier free school, because she did not want her child attending school with physically disabled children out of a concern that it would affect his self-esteem. The last placement option did not become available until June 19, 1998, and the parent was unable to observe a regular class.
On or about July 28, 1998, respondent informed petitioner that her son would be placed in a MIS-I class at respondent's P.S. 8 in the Fall of 1998 (Exhibit SD-33). In a letter dated August 30, 1998, the parent requested an impartial hearing to challenge the CSE’s recommendation that the child be placed in P.S. 8 (Exhibit SD-1). Petitioner unilaterally enrolled her son in the Staten Island Montessori School. The parent and the school district apparently attempted to reach a compromise, but were unsuccessful (Transcript, February 9, 1999). The hearing took place on March 4, 1999.
The hearing officer rendered his decision on April 26, 1999. He found that respondent had met its burden of proving that it had offered to provide an appropriate educational program in the MIS-I class at P.S. 8. Therefore, he denied petitioner's request for an award of tuition reimbursement for her son's tuition at the Montessori School during the 1998-99 school year. The hearing officer also found that respondent had failed to provide speech/language therapy to the boy at the private school from September, 1998 until February, 1999. He directed respondent to provide an additional session of speech/language every week until January, 2000. The hearing officer also directed the CSE to reconvene for the purpose of recommending an appropriate amount of counseling for the boy.
I must first address a procedural issue petitioner raised in her appeal. She requests that all references to her son's alleged self-mutilation be removed from the child’s school records and the hearing transcript. The issue of whether the child’s records should be amended to delete references to self-mutilation is not an appropriate subject for a proceeding of this nature (Application of a Child with a Disability, Appeal No. 96-50). The relevant Federal regulation (34 CFR 300.570) prescribes a specific procedure for challenging the accuracy of student records, and provides that hearings for this purpose are to be conducted in accordance with the provisions of the relevant Family Educational Rights and Privacy Act regulation (34 CFR 99.22). Hearings conducted pursuant to that regulation are not subject to State level review by the State Review Officer. With regard to petitioner’s second request that I remove all references to self-mutilation from the hearing transcript, I note that I have no authority to edit the hearing transcript. The transcript is a legal document that must remain intact.
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]).
I find that the board did not meet its burden of proving the appropriateness of its recommended program. The CSE recommended a self-contained class for the purpose of providing him with more individual attention. The child’s former teacher testified that she had spent a great deal of time with the child on an individual basis. The child also received individual attention from a special services teacher, a reading volunteer, a home tutor and a home speech/language therapist. In addition, the child received resource room services and speech/language therapy in small groups. Despite these services, the child did not progress in reading. Nevertheless, the CSE recommended that he be placed in a self-contained class with a small student-teacher ratio, where his reading deficits would be addressed primarily through individualized attention.
Dr. Pisano, respondent's psychologist, had recommended that a multi-sensory approach to reading be considered. However, the teacher of the recommended MIS-I class did not indicate that she employed a multi-sensory approach to reading during her testimony. She described three different approaches to reading which she used. First, she worked on increasing sight vocabulary. She also used flashcards with a basal reader. Lastly, she used a holistic approach to literature whereby the students read books together (R. 53, 54). In his testimony, Dr. Pisano indicated that the boy was unable to deal with his school work in terms of reading and writing, despite many accommodations by his regular education teacher. He testified that there had been a serious decline in the boy's self-esteem. Dr. Pisano testified that the parents might have to seek a multi-sensory approach to reading outside of school. He assumed that a MIS-I class would provide "some level of multi-sensory programming" (R.42). In addition, Dr. Pisano stated that he was uncertain how placement in a self-contained class would affect the child’s self-esteem. He opined that if the child’s emotional state and approach to the curriculum did not change, he would not learn to read (R. 46, 47).
The parent should not have been advised to seek an appropriate program outside of school. It is the obligation of the school district to provide an appropriate placement. In view of the child's lack of success in reading without the use of a multi-sensory approach to that subject and Dr. Pisano's opinion regarding the need for a multi-sensory approach to reading, I find that respondent has failed to demonstrate that it would have provided an appropriate program because it did not establish that the boy would have received multi-sensory instruction in reading.
The parent bears the burden of proving the appropriateness of the services which she unilaterally obtained for the child (Application of a Child with a Disability, Appeal No. 94-29; Application of a Child with a Disability, Appeal No. 95-57). In order to meet that burden, she must show that the services of the Montessori met her child's special education needs (School Committee of the Town of Burlington v. Department of Education, Massachusetts, supra). The private school need not employ certified special education teachers, nor have its own individualized education program (IEP) for the child (Application of a Child with a Disability, Appeal No. 94-20).
The record reveals that this child has significant deficits in his reading, writing, and organizational skills. He also evidences a high level of discomfort and frustration with his low performance in school. The Director of the Montessori testified that the child had been placed in a class of 27 third, fourth, and fifth graders at the school. There were two assistant teachers to help the boy's teacher. The private school did not provide speech/language services, or counseling. The Director testified that the Montessori system used a multi-sensory, i.e., hands-on, approach to instruct students. Although she briefly alluded to the use of the Orton-Gillingham technique, which is a multi-sensory instructional technique, the Director testified that her staff were not certified in that methodology. She also testified that the child had completed three workbooks, which were used to instruct Montessori students in reading decoding. The Director did not describe any individualized instruction which the school was providing to the child, and she indicated that his reading skills were still at a kindergarten to first grade level after approximately six months of attending the school. Although the Director indicated that the boy was feeling better about his school work, I am unable to conclude upon the record before me that the private school was meeting the child's special education needs. Therefore, I find that petitioner has not met her burden of proof with regard to the second criterion for an award of tuition reimbursement. Because I have found that petitioner did not meet her burden of showing the appropriateness of the Montessori school, I need not reach the question of whether equitable considerations support petitioner's claim for reimbursement.
I have considered petitioner's other contentions which I find to be without merit.
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that the hearing officer's decision is hereby annulled to the extent it found that respondent had offered to provide an appropriate educational program to petitioner's son.