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, Amy F. Melican, Esq., of counsel
Petitioners appeal from the decision of an impartial hearing officer which denied their request for full reimbursement of their child's tuition at the Stephen Gaynor School (Gaynor) for the 1998-99 school year. The hearing officer held that respondent had improperly declassified petitioners' child, and had failed to provide an appropriate program for the child. However, she limited petitioners' reimbursement to the cost of their child's speech/language therapy during that school year, upon a finding that the parents' unilateral placement was too restrictive. The appeal must be sustained.
Petitioners' son was reportedly unconscious for an indeterminate amount of time after falling into a swimming pool at the age of 18 months. The boy began receiving special education services through the Committee on Preschool Special Education at age three. The child attended the Albert Einstein Therapeutic Nursery School, where he received speech/language and social skills services.
In September, 1996, the child was classified as speech impaired by respondent's Committee on Special Education (CSE), which recommended that he be placed in a class with a student-teacher ratio of 12:1:1. The CSE also recommended that he receive speech/language therapy and occupational therapy (Exhibit P-D). Although the CSE recommended a public school placement for the child, petitioners chose to place their son in Gaynor for kindergarten (Exhibit SD-3, Transcript p. 87). Gaynor has not been approved by the State Education Department as a school for children with disabilities. The child continued to attend Gaynor during the 1997-98 school year. He remained classified as speech impaired.
In the Fall of 1997, the CSE began a reevaluation of the boy. In November of that year, the child's mother reported that her son continued to receive speech/language therapy and occupational therapy, but that he did not need the latter (Exhibit SD-1). In a psychological evaluation which was performed in November, 1997, petitioners' son achieved a verbal IQ score of 95, a performance IQ score of 100, and full scale IQ score of 97. The evaluator reported that the child evidenced some impulsivity and difficulty with speech articulation during the evaluation. The child manifested a moderate weakness in performing tasks requiring visual sequencing and reasoning skills. He displayed age appropriate perceptual skills. Projective testing revealed that the child had age appropriate interests and concerns (Exhibit SD-2). I note that the boy achieved lower IQ scores on the same IQ test when privately evaluated in September, 1998 (Exhibit B). In the latter evaluation, the child was found to have slight deficits in his arithmetic skills, fund of information, and attention span/short-term memory. He had a moderate deficit in his abstract reasoning ability, and a significant deficit in social judgment.
The child's educational evaluation was also conducted in November, 1997, when he was in the third grade. On the Kaufman Test of Educational Achievement the child achieved composite grade equivalent scores of 2.2 for reading and 3.3 for math. When the child had been tested in June, 1996, he achieved composite grade equivalents of 1.7 in reading and 2.2 in math. The evaluator reported that the child was in constant motion during the test, and that he talked to himself (Transcript p. 11). The child fidgeted and verbalized as a means of motivating himself to remain focused. He also frequently sought reassurance from the evaluator. When asked to write about his experiences the previous summer, the child was unable to recall how he spent his summer (Exhibit SD-3, Transcript p. 15). The evaluator also noted that the child needed frequent breaks during testing (Transcript p. 20).
The child's medical report revealed that he had no major limitations or special alerts. Although the child's physician referred to the boy as learning disabled, he did not identify the nature of the disability (Exhibit SD-8). A speech/language evaluation was conducted in January, 1998. The evaluator found that the child had age appropriate receptive language skills. The child also achieved an age appropriate expressive language score, but he demonstrated mild to moderate delays in two out of three subtests. The child had difficulty in formulating and recalling sentences. The evaluator recommended that the child receive speech therapy in a group twice per week to further develop his expressive language and speech articulation skills (Exhibit SD-4). The child was one of a small number of children at Gaynor who received individual speech/language therapy (Transcript p. 72).
An occupational therapy evaluation was conducted on January 30, 1998. The evaluator reported that the child demonstrated delays in graphomotor (handwriting) and visual integration skills. She recommended that the child receive occupational therapy in a group twice per week (Exhibit SD-6). The child was observed in reading and math classes at Gaynor on March 2, 1998. He was able to work independently, but he merely flipped through the book when asked to read quietly. He was attentive and focused, but fidgety, during the math class (Exhibit SD-7).
The child's mid-year progress report from Gaynor revealed that he had made progress academically. He was able to follow simple directions, but he had difficulty with complex directions. Similarly, the child was able to grasp concrete concepts, but had problems with abstract ideas. He required frequent review and repetition in the classroom (Exhibit SD-12).
On April 28, 1998, the CSE recommended that the child be declassified, but did not recommend any declassification support services for him. The CSE considered placing the child in the general education program with related services, but it declined to recommend those services for him because the child was functioning at or close to grade level. No speech/language evaluator was present at the CSE meeting (Exhibit SD-9, Transcript p. 27).
Petitioners objected to the CSE's recommendation of declassification, and requested an impartial hearing to obtain an award of full tuition reimbursement for the cost of tuition at Gaynor. The hearing took place on January 29 and June 1, 1999. In her decision which was rendered on July 16, 1999, the hearing officer held that the CSE had erred by recommending that the child be declassified. She found that the child continued to have a moderate expressive language impairment and a short-term memory deficit, which adversely affected the child's ability to interact appropriately with peers, and also affected his reading and listening comprehension. Because the hearing officer found that the child was improperly declassified, she found that the Board of Education had not sustained its burden of proving the appropriateness of the educational program which it had offered to provide during the 1998-99 school year.
The hearing officer also found that the child could have been educated in a regular education setting with speech/language therapy. She therefore found that Gaynor was not the least restrictive environment in which the child could have been educated, and declined to order that respondent reimburse petitioners for the cost of their son's tuition at Gaynor during the 1998-99 school year. She did order the Board of Education to reimburse petitioners for the cost of three sessions of speech/language therapy per week during that school year.
Petitioners challenge the hearing officer's determination that their son did not require a full-time special education placement during the 1998-99 school year. Respondent does not challenge the hearing officer's finding that the child should not have been declassified by the CSE, or her finding that it necessarily failed to meet its burden of proof with respect to the program which it had offered to provide to the child. It contends that the child did not require a full-time special education placement.
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). As noted above, repsondent did not meet its burden of proof.
The child's parents bear the burden of proof with regard to the appropriateness of the services they obtained for the child at Gaynor 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, Massachusetts, supra 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).
Gaynor is a private school serving learning disabled and language impaired children (Transcript, page 44). At the school, the boy was enrolled in a class of ten children. His reading group had five children who were reading at approximately the same grade level. His math group had six children of comparable skills. The child's teacher reported that, in class, the child often moved around and talked out loud while doing class work (Transcript p. 51), which is consistent with the report by respondent's educational evaluator (Exhibit SD-3). The teacher testified that the boy was a very concrete, i.e., literal, thinker, who required many examples and much repetition to master concepts.
I find that Gaynor was an appropriate placement for the child. The child's teacher addressed the child's memory deficits by hanging visual cues in the classroom, and by frequently repeating information. The child received individual and group speech/language therapy, with attention given to improving his expressive language skills as well as his speech articulation (Transcript pp. 64, 72). His difficulties with social skills were addressed in a weekly social skills group and by role playing (Transcript pp. 48-49). The class size at Gaynor was small enough to accommodate the child's frequent verbalizations and movements. The evidence shows that the child continued to progress academically at Gaynor during the 1998-99 school year. By the end of the school year, the child's letter/word recognition skills had improved to a fourth grade level for instructional purposes, and his reading comprehension skills had improved to a 3.0 to 3.5 grade equivalent for instructional purposes. His spelling skills had improved from a 3.5 grade level at mid-year to a 5.0 grade level at the end of the school year. His math skills had improved to a fifth grade level by the end of the school year. Although the child had no opportunity for participation in mainstream activities at Gaynor, I find that his social needs and speech/language needs were significant enough to require a program such as the program offered at Gaynor. The requirement that children with disabilities be educated in the least restrictive environment must be balanced against the requirement that they receive an appropriate education (Briggs v. Bd. of Ed. of the State of Connecticut, 882 F. 2d 688 [2d Cir., 1989]). I conclude that Gaynor was an appropriate placement to meet the child's special education needs during the 1998-99 school year.
I also find that equitable considerations favor petitioners. I concur with the hearing officer that petitioners have cooperated fully with the Board of Education. Having met all three criteria for an award of tuition reimbursement, petitioners are entitled to be reimbursed for the cost of tuition at Gaynor for the 1998-99 school year.
THE APPEAL IS SUSTAINED.
IT IS ORDERED that the hearing officer's determination that petitioners are not entitled to an award of tuition reimbursement for the 1998-99 school year is hereby annulled, and;
IT IS FURTHER ORDERED that respondent shall reimburse petitioners for the cost of tuition at The Stephen Gaynor School for the 1998-99 school year, upon petitioners' presentation of proof that they have paid the tuition to that school.