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, Carolyn Wolpert, Esq., of counsel
Petitioner appeals from an impartial hearing officer’s decision which denied her request for tuition reimbursement for the cost of her son's tuition at Harlem International Community School (Harlem International) for the 1999-2000 school year. The appeal must be sustained in part.
Petitioner’s son was 13 years old and in the eighth grade at the time of the hearing. He was initially referred to respondent’s committee on special education (CSE) in the spring of 1993, when he was in the first grade at PS 109. The CSE recommended that the student be classified as learning disabled, and that he be placed in a modified instructional services - I (MIS-I) program. It also recommended that the student receive speech/language therapy. Petitioner did not accept the CSE’s recommendation for MIS-I placement. For the 1993-94 school year, petitioner placed her son, at her expense, at the Saint Ursula Learning Center (Saint Ursula) in Mount Vernon, New York. He remained there through June 1999, when he completed the seventh grade. During that time, respondent’s CSE conducted annual and triennial reviews, recommending an MIS-I placement each year. For the 1997-98 and 1998-99 school years, respondent reimbursed petitioner for the cost of her son’s tuition at Saint Ursula (Transcript pp. 8 and 9).
Petitioner requested that her son be reevaluated when he was in the seventh grade because he reportedly was having difficulties at school (Exhibit 2). On February 11, 1999, the student’s teacher at Saint Ursula reported that petitioner’s son required repeated instruction when asked to follow directions (Exhibit 5). The teacher indicated that the techniques of a multi-sensory approach, guided practice and modeling had been used successfully with the student. He also indicated that the student’s greatest educational needs were in the areas of comprehension, sight vocabulary, and decoding. It was noted that he was working from a third grade math text, a fourth grade reader, and a fifth grade spelling, phonics and English book. A classroom observation report which is annexed to the teacher’s report indicated that he required some assistance with pronouncing words in his third grade reading textbook, and with explaining the concept of the fraction 1/2 in math class.
A social worker who updated the student’s social history on February 20, 1999 reported that petitioner was not satisfied with Saint Ursula’s educational program because it was not challenging enough for her son (Exhibit 1). The social worker noted that the principal of Saint Ursula had reported that petitioner’s son was low functioning, speech/language impaired, and manifested symptoms of a severe attention deficit hyperactivity disorder (ADHD), each of which presented barriers to learning. The social worker reported that the student had allergies, that his left foot was turned inward and that he walked with a limp.
An educational evaluator reported on February 20, 1999 that the student had achieved a math composite grade equivalent score of 4.3, a reading composite score of 4.5, and a spelling score of 3.1 on the Kaufman Test of Educational Achievement (Exhibit 3). The student’s listening comprehension skills were assessed to be at approximately a seventh grade instructional level. On an informal writing sample the student was found to be performing below age and grade expectations. The educational evaluator suggested that phonics games, decoding tricks stressing sounds and syllables, and linguistic games using family words would help to enhance the student’s reading skills. She noted that the student’s encoding (combining sounds and syllables) skills were not sufficiently developed, and suggested they be strengthened through the use of memory and association games targeting sounds and syllables. To improve the student’s expressive writing skills, the educational evaluator suggested that he be made to write frequently.
In a progress report dated February 23, 1999, the student’s speech/language therapist indicated that the boy exhibited deficits in his receptive and expressive language skills and that his auditory discrimination was poor (Exhibit 4). The speech/language therapist also noted that the student’s auditory memory skills were poor, and that he became confused when given abstract directions. The student exhibited difficulty with synonyms and antonyms, logical sequencing, and categorizing skills. The speech/language therapist indicated that the student had shown improvement in his ability to maintain a topic of conversation. He recommended that the student continue to receive small group speech/language therapy for 30 minutes twice per week.
A psychological evaluation was conducted on March 6, 1999 by one of respondent’s school psychologists, who reported that the student had been diagnosed with intermittent esotropia (crossed eyes) for which he had received vision therapy (Exhibit 2). On the Weschler Intelligence Scale for Children – III, the student achieved a verbal IQ score in the borderline range, a performance IQ score in the deficient range, and a full scale IQ score in the deficient range. The school psychologist indicated that the student’s profile suggested significant learning difficulties involving his perceptual organizational skills, language processing skills, and verbal comprehension skills. The student demonstrated only a vague idea of appropriate behavior in certain social situations. Projective testing revealed signs of emotional immaturity, as well as questions about his self-esteem resulting from his difficulties in school. The school psychologist noted that the student was sensitive to his peers’ opinions and teasing regarding his academic delays. He indicated that the student’s performance was affected by passivity, fear of risk-taking and a tendency to give up quickly.
On May 26, 1999, the CSE recommended that the student continue to be classified as learning disabled, and that he be placed in an MIS-I class at IS 82. It also recommended that the student receive related services of speech/language, occupational and physical therapy. Petitioner agreed with the CSE’s recommendation for related services, but she did not agree with her son’s recommended placement. On June 1, 1999 she requested an impartial hearing.
The hearing was conducted on August 30, 1999. Petitioner was not represented by counsel. At the hearing, the CSE representative described the MIS-I program and the composition of the recommended MIS-I class. In response to questions from the hearing officer, petitioner acknowledged that she had received instructions on the hearing procedures and was aware of her right to be represented by an attorney (Transcript p. 4). She indicated that she agreed with the CSE’s recommendation to classify her son as learning disabled (Transcript p. 6). Petitioner testified that her son had not attended public school since 1993, and she asserted that he was not ready to attend a public school. She indicated that she had enrolled her son at Harlem International for the 1999-2000 school year. She testified that the students at Harlem International had special needs similar to her son’s, and that her son would be in a class with a student : staff ratio of 12:2. The hearing officer asked petitioner if there was anything else she wanted him to know before he rendered his decision (Transcript p. 18). When she indicated that there was nothing further, he concluded the hearing.
The hearing officer rendered his decision on November 3, 1999. He found that respondent had presented substantial evidence that the proposed placement was appropriate. He further found that the student was within the range of functioning of the proposed class and that he would be appropriately grouped for instructional purposes with students whose nonacademic needs were similar. He denied petitioner’s request for tuition reimbursement because he found that respondent had offered an appropriate program reasonably calculated to offer the student educational benefits.
Petitioner appeals from the hearing officer’s decision. She objects to her son being placed in an MIS-I class, and is requesting tuition reimbursement. A board of education may be required to pay for educational services obtained for a student by the student’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 (Burlington School Committee v. Dept. of Educ., 471 U.S. 359 ). The fact that the facility selected by the parents to provide special education services to their 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 a parents' claim for tuition reimbursement (Florence County School Dist. Four v. Carter, 510 U.S. 7 ).
The Board of Education contends that petitioner is barred from receiving an award of tuition reimbursement because her son has not received special education services from a public agency. Respondent relies upon the provisions of 20 U.S.C. 1412 (a)(10)(C)(ii). Respondent’s argument has been considered and rejected in prior appeals (Application of a Child with a Disability, Appeal No. 98-4; Application of a Child with a Disability, Appeal No. 00-008). I reach the same conclusion in this appeal.
A board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (Application of a Child with a Disability, Appeal No. 93-9; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Matter of Handicapped Child, 22 Ed Dept Rep 487 ). To meet its burden, the board of education must show that the recommended program is reasonably calculated to allow the student to receive educational benefits (Board of Educ. v. Rowley, 458 U.S. 176 ), and that the recommended program is the least restrictive environment for the child (34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a]). An appropriate program begins with an individualized education program (IEP) which accurately reflects the results of evaluations to identify the student’s needs, establishes annual goals and short-term instructional objectives which are related to the student’s educational deficits, and provides for the use of appropriate special education services to address the student’s special education needs (Application of a Child with a Disability, Appeal No. 93-12; Application of a Child with a Disability, Appeal No. 93-9).
The record shows that the student was functioning in the borderline range of intellectual ability, and that he had deficits in his mathematics, reading, spelling, written expression, and receptive and expressive language skills. Additionally, there is some indication in the record that the student was distractible and had difficulty following directions. While the IEP reflected the results of the student’s educational evaluation, it failed to reflect the fact that he was functioning in the borderline range of intellectual ability with significant difficulties in verbal reasoning and perceptual organization. The IEP included some information about the student’s learning style, but it did not provide any information about his distractibility and difficulty following directions, as had been reported by his teacher at Saint Ursula. It also failed to indicate what techniques or approaches had been found to be effective with him, which would be useful information for his new teacher to have. I find that the student’s IEP failed to adequately identify the student’s educational needs.
The student’s IEP included annual goals for reading comprehension, mathematical problem solving and computational skills, occupational therapy and physical therapy. However, it did not establish any goal for speech/language therapy, nor did it include any goal to improve his written expression and spelling. The only annual goal for reading was a general statement that the student would increase his word recognition and comprehension skills. It did not identify the level of performance which the student was expected to attain during the 1999-2000 school year. Similarly, the only annual goal for mathematics was a general statement for the student to increase problem solving and computational skills. While the short-term instructional objectives for reading, and mathematics provided more specificity, they too failed to meet the required standard.
An IEP must include a statement of measurable annual goals, including benchmarks or short-term objectives, related to meeting the student’s needs that result from the student's disability to enable the student to be involved in and progress in the general curriculum; and meeting each of the student's other educational needs that result from the student's disability (20 U.S.C. § 1414 [d][A]). I note that the IEP contained a chart to document progress, which included a coding system for methods of measurement, such as teacher made materials and standardized tests. However, the chart was not completed and the IEP failed to otherwise include any measurable standards or establish a schedule for assessing the student’s progress for the annual goals for reading and mathematics. I find that the IEP was deficient with respect to the student’s annual goals and short-term objectives. Having found that the IEP failed to adequately identify the student’s educational needs and failed to establish specific, measurable annual goals and short-term instructional objectives, I am unable to find that respondent demonstrated the appropriateness of the program it recommended for the student. Accordingly, I find that petitioner has prevailed with respect to the first criterion for an award of tuition reimbursement.
With respect to the second criterion for an award of tuition reimbursement, the student’s parent bears the burden of demonstrating the appropriateness of the services she obtained at Harlem International during the 1999-2000 school year (Application of a Child with a Disability, Appeal No. 94-29; Application of the Board of Educ., 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 Individuals with Disabilities Education Act (Burlington, 471 U.S. at 370), i.e., that the private school offered an educational program which met the student’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 student (Application of a Child with a Disability, Appeal No. 94-20).
As noted above, petitioner made a brief statement concerning her preference for Harlem International. Petitioner did not introduce any exhibits, nor did she call any witnesses to testify. After petitioner indicated that she had no further information to present, the hearing was concluded. Although the hearing officer did not preclude petitioner from presenting her case, he did not explain to her that she had the burden of demonstrating the appropriateness of the program at Harlem International, nor did he question her about the private school to obtain information concerning its educational program. Impartial hearing officers have a responsibility to assist unrepresented parties at hearings (Application of a Child with a Handicapping Condition, Appeal No. 92-8; Application of a Child with a Handicapping Condition, Appeal No. 92-38). They must also ensure that there is an adequate record upon which to premise their decisions and permit meaningful review of the issues (Application of the Board of Education of the City School District of the City of New York, Appeal No. 94-35; Application of a Child with a Disability, Appeal No. 97-62). I find that the hearing officer failed to meet his obligation to do so. Therefore, I am compelled to annul the hearing officer’s decision and order a new hearing to provide petitioner the opportunity to demonstrate the appropriateness of the program she obtained for her son at Harlem International.
I note that respondent asks that I consider additional evidence relating to the issue of the authority of Harlem International to use that name and to operate a school at a specific site. Having ordered a new hearing on that issue, it is not necessary that I address respondent’s request. That information should be presented at the new hearing.
THE APPEAL IS SUSTAINED.
IT IS ORDERED that the decision of the hearing office is annulled; and
IT IS FURTHER ORDERED that within fifteen days after the date of this decision, respondent shall schedule a hearing to determine whether the services obtained for the student at Harlem International during the 1999-2000 school year were appropriate to meet the student’s special education needs and whether petitioner’s claim for tuition reimbursement is supported by equitable considerations.