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 of the City School District of the City of New York
Sonia Mendez-Castro, Esq., attorney for petitioner
Hon. Michael D. Hess, Corporation Counsel, attorney for respondent, William S. Plache, Esq., of counsel
Petitioner appeals from an impartial hearing officer’s decision upholding a recommendation by respondent’s Committee on Special Education (CSE) to place petitioner’s son in respondent’s specialized instructional environment IV (SIE-IV) program at P. 752 for the 1998-99 school year. Having found the recommended placement to be appropriate, the hearing officer denied petitioner’s request for tuition reimbursement for the cost of her son’s tuition at the Sinai High School during that school year. The appeal must be sustained.
Petitioner’s son, who was 19 at the time of the hearing, has Down syndrome (Transcript p. 96). When evaluated in May 1997, the student was reported to be functioning in the mildly to moderately retarded range, with some visual-graphomotor difficulties. Emotional maturity appeared to be an area of relative strength for the student, who was described as friendly, cooperative, and eager to succeed (Exhibit 5 at 6). In an educational evaluation performed in June 1997, he achieved grade equivalent scores of 1.8 for reading, 1.8 for spelling, and 2.2 for math (Ibid. at 4-5). By June 1998, his reading had improved to a grade equivalent of 2.5 (Ibid. at 7). He has been classified as mentally retarded by the CSE, and there is no dispute about his classification.
Petitioner’s son attended a public school kindergarten, and then attended the private "Hoosh" School for approximately ten years, apparently at his parents’ choice (Transcript p. 97). Petitioner enrolled her son at the Sinai High School for the 1997-98 school year, and challenged the placement offered to her son by respondent for that school year. That due process proceeding was terminated with a stipulation, in which the Board of Education agreed to reimburse petitioner for the cost of her son’s tuition and related services at the Sinai High School during the 1997-98 school year (Exhibit 2).
In March 1998, the student’s teachers at the Sinai High School reported that his reading had become more fluent and that he could spell words having certain phonetic sounds. In math, the boy’s class was working on reading and writing fractions and using certain abbreviations for measurement. The student was reported to be doing well in his life skills class, and to have excellent word processing skills. He was also reported to have shown growth in his social interactions with peers (Exhibit 9).
In a speech/language update in April 1998, it was noted that petitioner’s son was receiving weekly speech/language therapy focusing on strengthening his pragmatic language skills. The report noted that the student appeared to enjoy socializing, and that his ability to follow directions and carry out tasks he did not want to do had improved (Exhibit 8). Petitioner’s son was observed by a CSE representative during a religious studies class at the Sinai High School on June 11, 1998. He was described as an enthusiastic participant who was not distracted by the movements of other students (Exhibit 10).
At its annual review on June 17, 1998, the CSE recommended that the student be placed on a 12-month basis in a SIE-IV class with a 12:1+1 student-teacher ratio at P. 752 in Queens for the 1998-99 school year (Exhibit 5). It further recommended that he receive 30 minutes of individual and 30 minutes of group counseling per week, 40 minutes of individual speech/language therapy per week, 30 minutes of individual physical therapy twice per week, and 30 minutes of individual occupational therapy twice per week. The student’s individualized education program (IEP) for the 1998-99 school year included annual goals for language arts, reading, writing, career skills, social studies basic science, recreation, daily living skills and counseling. Transition skills were addressed with an emphasis on daily living skills and counseling. The IEP also contained goals for transition. However, the IEP did not include annual goals for the student’s speech/language therapy and physical therapy, nor did it include any information about the results of his occupational therapy or physical therapy evaluations. Although not denominated as a goal for occupational therapy, there is a goal for improving the student’s fine motor skills, which would be within the ambit of occupational therapy.
On July 1, 1998, the CSE sent petitioner a Final Notice of Recommendation for the SIE IV program at P. 752 Queens. Petitioner rejected the proposed placement as being inappropriate to meet the needs of her child (Exhibit 4). On October 28, 1998, petitioner through her advocate requested an impartial hearing (Exhibit 6). The hearing was adjourned twice, and began on April 12, 1999. At the hearing, petitioner acknowledged through her advocate that she agreed with the CSE’s recommendations that her son remain classified as mentally retarded and that he receive the related services indicated in his IEP (Transcript p 9). Petitioner did not agree with the recommended program or placement, which she asserted would not provide adequate academic instruction and was in too large a facility.
The hearing ended on April 26, 1999. In a decision dated June 25, 1999 and amended July 1, 1999, the hearing officer noted that there was no dispute about the student’s classification as mentally retarded, or about the appropriateness of a self-contained special education class to provided academic instruction to him. She further noted that the parties agreed that petitioner’s son should receive vocational and daily living skills training. She found that the CSE’s failure to include the results of the student’s most recent speech/language therapy, occupational therapy, and physical therapy evaluations on the IEP and its failure to include annual goals for speech/language therapy and physical therapy on the IEP did not mean that the CSE’s recommendations were inappropriate because there was no disagreement about the related services. However, she directed the CSE to amend the IEP to correct its omissions. She rejected petitioner’s challenge to the size of the proposed SIE-IV class and to the adequacy of its academic component. The hearing officer found that respondent had met its burden of proving that it had offered to provide an appropriate educational program to petitioner’s son for the 1998-99 school year.
Petitioner argues that the CSE failed to meet its burden of demonstrating the appropriateness of its recommended program. She contends that her son's IEP is flawed because it does not include annual goals for speech/language therapy, occupational therapy, physical therapy, or counseling, and that the recommended program would not have met her son's individual needs. Petitioner also contends that respondent failed to provide her son with the related services which the CSE had recommended for him during 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 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]). An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the child's needs, establishes annual goals and short-term instructional objectives which are related to the child's educational deficits, and provides for the use of appropriate special education needs to address the child’s special education needs (Application of a Child with a Disability, Appeal No. 93-9; Application of a Child with a Disability, Appeal No. 93-12).
The student’s IEP describes the results of psychological and educational evaluations performed in May and June 1997, respectively. It also includes very cursory descriptions of his then current performance levels in reading, spelling, and math, as well as a summary of the April 1998 speech/language update. There is a brief reference to a deficit in his visual-graphomotor coordination, but there is no other indication in the IEP of a need for occupational therapy. Pursuant to the Regulations of the Commissioner of Education, an IEP must include a description of the student’s present levels of performance and needs with regard to academic achievement, social development, physical development, and management needs (8 NYCRR 200.4[c][I]). I find that this student’s IEP did not identify his present levels of performance or needs with regard to social and physical development, and contained little useful information with regard to his management needs. Consequently, it does not provide an appropriate frame of reference for determining the appropriateness of the student’s recommended educational program. One of the issues which petitioner raised at the hearing was the class size in the SIE-IV program. The IEP description of the student’s management needs indicates that he "requires a small full-time special class providing remediation and vocational preparedness." The IEP fails to provide adequate information which would be relevant in determining whether a 12:1+1 ratio was appropriate. The IEP indicates that that emotional maturity appeared to be an area of strength for the student, while two of the IEP goals suggest that the student had a self-image problem and needed to improve peer relationships. I find that the IEP does not adequately describe his social and emotional development, or provide a basis for the CSE’s recommendation that he receive both individual and group counseling. Similarly, there is no indication in the IEP why the student should be receiving physical therapy. I note that petitioner testified that her son has good athletic skills (Transcript p. 110).
I recognize, as did the hearing officer, that petitioner agrees with the CSE’s recommendation for her son’s related services. However, that does not excuse the CSE from the responsibility of preparing an IEP which accurately describes the student’s current levels of achievement and needs. Moreover, there are no goals or objectives for the speech/language, occupational therapy, physical therapy, and counseling which he was to receive pursuant to the IEP. An IEP must have appropriate goals and objectives for the special education services which the student is to receive. While not every defect in an IEP requires a finding that a school district has failed to offer an appropriate educational program to a student, I must find that the CSE’s omissions are too significant to be overlooked. Therefore, I cannot agree with the hearing officer’s determination that respondent met its burden of proof.
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). I have found that petitioner has prevailed with respect to the first criterion for an award of tuition reimbursement.
The child's parent bears the burden of proof with regard to the appropriateness of the services which the parent obtained for the child at the Sinai High School 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).
The Principal of the Sinai High School testified that the school consisting of 21 students with disabilities, was located in the Torah Academy, a male-only, private high school of approximately 250 students. Students in the Sinai High School are assigned to one of two "tracks". Petitioner's son was in a track which focused upon functional academics and daily living and vocational skills. Group speech therapy and counseling were provided. No other related service was provided. There were four mildly to moderately retarded male students in the young man's class for instruction in reading, math, and life skills. His teacher had two assistants. The principal was shown a copy of the student's IEP goals and testified that the school was addressing those goals and the student was making progress in achieving them. She estimated that his reading and math skills were at a second or third grade level. In addition to academic instruction, petitioner's son received vocational education to develop his "employability skills", e.g., getting to work on time, and interacting appropriately with peers. Twice each week the student went to a work site at the Englewood Hospital for approximately three hours of work experience. The school's Director of Transitional Planning also testified about the training and experience provided to petitioner's son in the vocational portion of the school's program. She testified that petitioner's son required a highly structured work environment, and opined that he was receiving an appropriate program at the Sinai High School. A school psychologist who is an administrator of an agency for the disabled testified that the Sinai High School provided focused reading and math instruction, and that its vocational program was very appropriate for this student.
Respondent contends that the student's placement at the Sinai High School was not appropriate under the IDEA because his primary teacher was not certified to teach special education, he did not receive the individual related services which had been recommended, and the school is not the least restrictive environment for him. As noted above, there is no requirement that a private school teacher be certified by the State Education Department in order for the parent to obtain an award of tuition reimbursement. Both parties agree that the recommended related services would have been appropriate for the student. At the hearing, the CSE representative asserted that petitioner had failed to request that respondent provide the related services at the Sinai High School, and indicated that respondent would issue an authorization for the services to be provided to the student. Petitioner acknowledged that she had not specifically requested the services from respondent (Transcript p. 117). I find that the fact that the services were not provided by the private school does not in and of itself establish that the school’s educational program was inappropriate under the IDEA.
Respondent’s argument about the least restrictive environment is based upon the fact that the private school serves only Jewish male students. As used in the IDEA, the concept of least restrictive environment refers to educating students with disabilities with their non-disabled peers except when that is not feasible (20 USC 1412 [a]). In this instance, there is little difference between the placement proposed by the CSE and the parent’s placement in terms of the least restrictive environment. I find that respondent’s argument is without merit. I further find that petitioner has met her burden of proof with respect to the issue of the appropriateness of the Sinai High School’s services for her son during the 1998-99 school year. Therefore, she has prevailed on the second part of the tri-partite test for an award of tuition reimbursement.
The third and last criterion for tuition reimbursement is whether petitioner’s claim is supported by equitable considerations. There is nothing in the record to indicate that she did not cooperate with the CSE, and respondent makes no argument with respect to the third criterion. I find that petitioner’s claim is supported by equitable considerations.
THE APPEAL IS SUSTAINED.
IT IS ORDERED that the hearing officer’s decision is hereby annulled; and
IT IS FURTHER ORDERED that respondent shall reimburse petitioner for her expenditure for her son’s tuition at the Sinai High School during the 1998-99 school year, upon petitioner’s presentation of proof of payment of such tuition.