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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 petitioners

Hon. Michael D. Hess, Corporation Counsel, attorney for respondent, Michael J. Krieger, Esq. of counsel


         Petitioners appeal from an impartial hearing officer’s decision which denied their request for tuition reimbursement for the cost of their daughter's tuition at the Stephen Gaynor School (Gaynor) for the 1998-99 school year. The appeal must be dismissed.

        Petitioners’ daughter was 10 years old and in the equivalent of the fourth grade at Gaynor when the hearing was held in May, 1999. She began attending Gaynor for second grade during the 1996-97 school year. Gaynor has not been approved by the New York State Education Department to provide education to children with disabilities. Although the record is unclear with respect to the child’s early history with the committee on special education (CSE), she was apparently classified as learning disabled prior to the 1997-98 school year.

        In the late fall of 1997, the CSE began its preparation for the child’s annual review later in the school year. The child’s father was interviewed for an update of her social history on November 22, 1997. He indicated that his daughter had problems with language processing and memory (Exhibit 1). The interviewer noted that the child had been evaluated by a psychiatrist for attention difficulties, but had not been diagnosed as having an attention deficit disorder, and no medication been recommended for her. The child’s father indicated that his daughter required individual attention because she had difficulty focusing in a group setting. The interviewer noted that the child had been receiving therapy for several years and continued to see a social worker for therapy once per week.

        An educational evaluation was conducted on December 6, 1997 (Exhibit 3). The educational evaluator noted that the child demonstrated good attention and concentration, and appeared to be well motivated. He reported that the child was functioning near, at, or above age/grade expectancy in social studies, science and humanities, and her expressive vocabulary and applied problem solving skills were also at that level. Mild delays were noted in the child’s math calculation, reading comprehension and written expression skills.

        In a December 13, 1997 psychological evaluation (Exhibit 2), a school psychologist indicated that the child "was tested as part of a requirement for funding." She noted that the child had been adopted at age five months, and that her adoptive mother had died when the child was two years old. Her adoptive father remarried when the child was four years old. She was adopted by her father’s new wife in 1997. The school psychologist reported that the child continued to have issues of loss and abandonment as a result of the death of her first adoptive mother. She reported that the child was friendly, cooperative and able to sustain concentration and effort over time. The child achieved a verbal IQ score of 97, a performance IQ score of 96, and a full scale IQ score of 96 on the Weschler Intelligence Scale for Children - III (WISC-III), placing her in the average range of intellectual functioning overall. On language based tests, the child’s weakest area was arithmetic reasoning, where she scored in the low average range. In the performance area, she received low average scores in visual attentiveness to details, sequencing, social interactions and handling spatial relationships. The school psychologist indicated that she saw no learning disability. However, she noted that the child’s grapho-motor skills were delayed. The school psychologist noted that these results were similar to results obtained in January, 1996 except for the child’s picture arrangement score, which had doubled. She noted that the child’s language appeared to be appropriate for her age. The school psychologist reported that there was no evidence of any emotional difficulties which would adversely affect the child’s learning.

        A speech/language pathologist evaluated the child on January 16, 1998 (Exhibit 4). She noted that the child’s ability to focus and remain on task was good. However, the child did not attempt any test items that were difficult for her to do. The speech/language pathologist reported that the child’s speech intelligibility was good for single words and in conversation. Although the child’s expressive/receptive vocabulary was age appropriate, her expressive/receptive language skills were severely delayed. She achieved a total language score of 61, (5-0 age equivalent) on the Clinical Evaluation of Language Fundamentals - 3 (CELF). The speech/language therapist reported that the child demonstrated auditory processing delays for various concepts, in addition to delays in her ability to follow multi-step directions with linguistic concepts. She also had serious difficulty with sentence assembly, and her story narration was immature. The speech/language pathologist recommended that the child receive speech/language therapy for 30 minutes in a group of three twice per week, with a focus upon improving her auditory processing skills and increasing her expressive language ability and ability to follow directions.

        In an occupational therapy evaluation conducted on April 13, 1998, the evaluator noted that the child was cooperative and followed most instructions, but was easily distracted by sounds and people. However, she was able to return to the task at hand without prompts (Exhibit 5). I note that the evaluation was conducted in a hallway, where there were many distractions. The occupational therapist also indicated that the child’s endurance was reported to be decreased in the classroom, especially when she was challenged with tasks that involved both fine motor demands and cognitive demands. The child demonstrated adequate fine motor skills with regard to hand manipulation and writing, except for an inefficient pencil grasp. The occupational therapist reported that the child had low muscle tone, and poor postural control and stability, especially when she sat. She further reported that the child’s balance and equilibrium responses were not fully developed. The child had difficulties with both fine and gross motor integration and planning. The occupational therapist recommended that the child continue to receive 30 minutes of occupational therapy twice per week to address postural issues, develop a more efficient pencil grasp, facilitate better arm, wrist and finger control during table top tasks and improve visual perceptual motor integration skills.

        On April 15, 1998, the child was observed in class by one of respondent’s psychologists, who noted that the child was one of seven students in a classroom with a teacher and an assistant teacher (Exhibit 11). The girl was distracted by another student during a writing assignment, and continued to look around the room after the distracting behavior had ended. While in a group of three students working on multi-step word problems, the child volunteered to answer several questions, and was able to correctly answer questions and to solve a problem at the board.

        On May 22, 1998, the CSE recommended that the child be classified as learning disabled (Exhibit 8). Her 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]). The CSE also recommended that the child be placed in a Modified Instructional Services-I (MIS-I) class with a student:teacher ratio of 15:1. It further recommended that the child receive 30 minutes of speech/language therapy in a group twice per week, and 30 minutes of individual occupational therapy twice per week. The recommended testing modifications included waived or extended time limits, taking tests in special locations, and having test directions and questions read aloud to her.

        At the end of the 1997-98 school year, the child’s teachers at Gaynor prepared a progress report (Exhibit 6). The teachers reported that the child’s "pre-reading" and phonics skills were at approximately a 2.0 grade level, while her reading comprehension was between a 1.5 and 2.0 grade level. Her listening comprehension was reported to be at a 2.5 grade level, her spelling was between a 1.5 and 2.0 grade level, and her math was at a 2.8 grade level. On July 6, 1998, a final notice of recommendation was sent to the child’s parents, advising them that the CSE had recommended that their daughter be placed in an MIS-I class at P.S. 87, and that she receive the related services of occupational therapy and speech/language therapy (Exhibit B). An undated handwritten note on the final notice of recommendation indicates that one of the parents had rejected the proposed placement, and had requested transportation to and related services at Gaynor.

        The impartial hearing in this proceeding was held on May 21, 1999. In his decision which was rendered on July 14, 1999, the hearing officer identified several issues raised by petitioners at the hearing. Initially, he found that the recommended program was appropriate for the child. He further found that petitioners were not prejudiced by any delay by the CSE in recommending a placement, or by failing to specify the child’s proposed class in the final notice of recommendation which was sent to them. With regard to the latter, he noted that there was only one fourth grade MIS-I class at the school listed on the notice of recommendation. The hearing officer further noted that there was no real dispute about the annual goals which appeared on the child’s individualized education program (IEP), and that a subsequent change in the date by which the goals were expected be mastered by the child did not prove that the goals were inappropriate, or afford a basis for annulling the IEP. While noting that the school psychologist should not have indicated in her report that the child was being evaluated for funding purposes, the hearing officer determined that there was no reason not to rely upon that evaluation. He rejected petitioners’ argument that respondent had failed to prove the appropriateness of the recommended class because the teacher of that class did not testify at the hearing. As is often the case in New York City, a site supervisor testified about the program. With respect to petitioners’ request for tuition reimbursement, the hearing officer found that the IEP was reasonably calculated to enable the child to receive an educational benefit. He opined that the child could benefit socially by attending a school in her neighborhood, and concluded that the possibility of mainstreaming the child in the future, together with the special education services the CSE had recommended, demonstrated the appropriateness of the MIS-I placement for the child. The hearing officer also found that Gaynor was not appropriate because it was too restrictive. However, he ordered the CSE to reconvene to consider recommending counseling to assist the child in making the transition to public school.

        Petitioners appeal from the hearing officer’s decision on a number of grounds. Initially, petitioners challenge the hearing officer’s objectivity based upon certain remarks and inquiries he made during the impartial hearing. A hearing officer must avoid even the appearance of impropriety, and must render a decision which is based on the record (Application of a Child with a Disability, Appeal No. 94-32). Inappropriate remarks by a hearing officer may afford a basis for finding that a hearing officer was biased. Having reviewed the entire record and the context in which the challenged statements and inquiries were made, I find that the record does not afford a basis to conclude that the hearing officer was biased. Petitioners also argue that the hearing officer went beyond the scope of the hearing when he opined that placement in a neighborhood school could benefit the child. I disagree. The hearing officer stated that such placement might help to improve the child’s socialization skills, a concern which the child’s mother had raised at the hearing (Transcript p. 67).

        Petitioners also raise several challenges to the CSE process. First, they assert that the CSE failed to consider their daughter’s emotional needs, and that they were not afforded meaningful participation in the CSE meeting. However, I find that the record does not support their claims. The child’s mother testified that her daughter’s emotional fragility was not discussed at the May, 1998 meeting (Transcript p. 69). However, there is nothing in the record to indicate that the child’s mother was prevented from discussing her daughter’s emotional difficulties, or that the CSE had failed to consider any information she had submitted concerning her daughter’s emotional needs. Moreover, the school psychologist who had evaluated the child for the CSE noted that the child continued to have feelings of loss and abandonment as a result of the death of her mother, but the psychologist indicated that there was no evidence of any emotional disturbance that would adversely affect the child’s learning. Additionally, I note that the child’s mother testified that she advised the CSE that she agreed with its determination that her daughter was learning disabled and required help (Transcript p. 69). As noted by the hearing officer in his decision, the child’s mother had acknowledged that she had not been precluded from sharing her concerns with the CSE. Under the circumstances, I find that there is no merit to petitioners’ contention that they were denied meaningful participation in the CSE process.

        Additionally, petitioners assert that the IEP goals were carelessly written because there was an error in the dates by which the child was to achieve her goals. I agree with the hearing officer that such error does not per se afford a basis for invalidating the IEP. Petitioners also assert that their child was not evaluated in a timely manner. I must note that this was not an initial referral to the CSE, but simply an annual review of a child who had been previously identified as a child with a disability. Petitioners object to the fact that the final notice of recommendation was not prepared until six weeks after the CSE meeting, when school had closed for the year. The record shows that the child’s mother attended the May, 1998 meeting at which the placement recommendation was made. The record also shows that she had observed an MIS-I class during 1997-98 school year (Transcript p. 70). Although it may be helpful for a child’s parents to visit a proposed class for the child, there is no legal requirement that they must be afforded an opportunity of doing so before the beginning of classes in September. The record reveals that the evaluation process was completed and petitioners were notified of the recommended placement before the beginning of the 1998-99 school year.

        Petitioners further argue that the final notice of recommendation prepared by the CSE was technically deficient because it failed to identify a specific MIS-I class. However, the record shows that there was only one MIS-I class for fourth grade at P.S. 87 (Transcript p. 41). Under the circumstances, I am unable to find that petitioners were genuinely unaware of what class had been recommended for their daughter, and that there is basis for annulling the CSE’s recommendation because of the notice which was sent.

        Petitioners also challenge the hearing officer’s determination about the appropriateness of their child’s recommended placement. 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).

        The record shows that child has deficits in reading, math, and written expression. I find that her IEP adequately identified her levels of performance and her individual needs. I further find that the IEP established annual goals and short-term instructional objectives which were related to the child's identified educational deficits. There appears to be no dispute that petitioners’ child requires primary special education for instructional purposes. The MIS-I program which the CSE recommended for the child would have provided such instruction to her.

        Respondent is also required to demonstrate that it complied with the regulatory requirement to suitably group the child with other children for instructional purposes (8 NYCRR 200.6[a][3]). Typically, a board of education demonstrates similarity of grouping for instructional purposes by offering a class profile, i.e., a chart listing the needs of the children in accordance with the four criteria set forth in 8 NYCRR 200.1(jj), or by having an employee testify about the needs of the children. Respondent did both. The class profile shows that there were eight students in the proposed class who were functioning between a 2.6 and 4.5 grade level in reading and math, with one student at the pre-primer level. Half of the students had below average writing skills. However, as petitioners point out, the class profile is not dated. I note that the supervisor of special education programs at P.S. 87 testified that there were eight students at the beginning of the year and no new students had been admitted during the four months preceding the hearing (Transcript p. 49). I also note that the CSE recommended a class with a student:teacher ratio of 15:1 and the proposed class is considerably smaller. I find that the child would have been appropriately grouped for purposes of instruction, and that the hearing officer correctly concluded that respondent had met its burden of proving that it had offered to provide an appropriate placement to the child for the 1998-99 school year.

        Petitioners are seeking an award of 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 [1985]). With respect to the first criterion for an award of tuition reimbursement, i.e., whether the services offered by the board of education were appropriate, I have found that respondent has demonstrated the appropriateness of its recommended program. Having found that respondent demonstrated the appropriateness if its recommended program, it is not necessary to address the remaining criteria for an award of tuition reimbursement. Accordingly, I find that petitioners are not entitled to reimbursement for their daughter’s tuition at Gaynor for the 1998-99 school year.

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


Topical Index

Annual Goals
CSE ProcessParent Participation
Implementation/Assigned SchoolTimeliness of School Assignment/FNR
Parent Appeal
Preliminary MattersIHO Qualifications/Bias
Present Levels of Performance