Application of the BOARD OF EDUCATION OF THE SMITHTOWN CENTRAL SCHOOL DISTRICT for review of a determination of a hearing officer relating to the provision of educational services to a child with a disability
Peter G. Albert, Esq., attorney for petitioner
Long Island Advocacy Center, Inc., attorney for respondents, Deborah R. Monheit, Esq., of counsel
Petitioner, the Board of Education of the Smithtown Central School District, appeals from an impartial hearing officer's decision which ordered it to reimburse respondents for the cost of their child's education at The Ivy League School (Ivy League) during the 1999-2000 school year. The appeal must be dismissed.
At the time of the hearing, respondents' child was five years old and was enrolled in a prekindergarten class at Ivy League. The child began receiving early intervention services at fifteen months of age. By age two years, eight months, the child was receiving special education twice a week for 45 minute sessions, speech therapy three times a week for 45 sessions, occupational therapy once a week for 45 minutes and physical therapy once a week for 45 minutes. In addition, the child attended a Mommy and Me program at the Long Island Communications Center once a week (Exhibit C).
The child was referred to the Committee on Preschool Special Education (CPSE) for initial evaluation on April 1, 1997. On the Preschool Language Scale - 3 (PLS-3), she achieved a standard score of 95, an age equivalent of 30 months and a percentile of 37. When evaluated by an audiologist, the child was found to have questionable hearing sensitivity in the right ear, while hearing sensitivity for her left ear was essentially within normal limits. The audiologist suggested a physician consultation and an audiological reevaluation following the physician consultation (Exhibit C).
An occupational therapy evaluation revealed that the child had significantly low tone in the upper extremities and trunk, which impacted her ability to do various activities. On the Pediatric Evaluation of Disability Inventory, the child performed more than two standard deviations below the mean in self-care skills. On the fine motor section of the Peabody Developmental Motor Scale, the child displayed a delay of approximately 35 percent. The evaluator recommended occupational therapy. A physical therapy evaluation revealed that the child had decreased trunk control stability and strength, and the evaluator recommended that the child receive physical therapy (Exhibit C).
In her psychological evaluation, the child achieved a composite score of 104 on the Stanford-Binet Intelligence Scale - Fourth Edition, which was at the 60th percentile and within the average range of intellectual functioning. The evaluator noted that the results should be viewed with caution because of the child's limited expressive language ability. The Achenbach Child Behavior Checklist revealed that the child had no significant areas of concern regarding social/emotional functioning. The child’s social history revealed a stable family relationship (Exhibit C).
On May 14, 1997, CPSE recommended that the child be classified as a preschool student with a disability, and that she be placed in a "full-day" program with a 12:1+1 staffing ratio at the Smithtown Special Education Preschool on a 12-month basis. Although the child's individualized education program (IEP) indicates that a full day program was recommended, the recommended program ran for four hours each morning. The CPSE also recommended that the child receive three individual and two group sessions of speech/language therapy per week, as well as two sessions of individual physical therapy and two sessions of individual occupational therapy per week. A transportation aide and a car seat were also recommended for the child. The child’s IEP also provided for parent education, including home visits and parent participation, one time every 4-6 weeks. The CPSE reported that the child's management needs interfered with instruction. Among other things, the CPSE indicated that a behavior modification program was necessary. The CPSE reasoned that a self-contained class was necessary to meet the child's academic and social/emotional development needs (Exhibit F).
On June 13, 1997, the CPSE amended the child’s IEP to include a summer program. The summer program was 30 minutes longer each day than the child’s ten-month program. The summer program included the same related services as the school year program. The program began in July 1997 (Exhibit E).
A school district speech pathologist evaluated the child in January 1998. On the expressive communication portion of the PLS-3, the child achieved a total language standard score of 83, an age equivalent of 2-7, and a percentile of 13. On the Expressive One Word Picture Vocabulary Test - Revised (EOWPVT-R), the child achieved a standard score of 84, an age equivalent of 2-7 and a percentile of 14. The evaluator reported that the child exhibited significant expressive language deficits including vocabulary delays, a phonological disorder and oromotor weaknesses. She also noted that deficits in the child’s pragmatic speech skills limited her ability to interact with teachers and peers (Exhibit H).
An updated occupational therapy evaluation was also conducted in January 1998. The evaluator found that the child displayed improvement, but that she continued to exhibit low muscle tone. Her fine motor and visual motor skills were two standard deviations below the mean. The evaluator recommended that the child continue to receive occupational therapy (Exhibit H). In February 1998, the child was diagnosed by an orthopaedic physician as having hypermobile flat feet and ligamentous laxity. The physician recommended that the child be fitted for ankle braces (Exhibit H).
A physical therapy evaluation was conducted March 3, 1998 when the child was 43 months old. The evaluator reported that the child's gross motor performance was at the 30-32 month level. Progress was noted in weight shift, balance, muscle strength, posture and gross motor skills. The therapist recommended continuation of individual physical therapy twice per week through the summer, and one individual therapy session per week and one group therapy session per week during the school year (Exhibit H).
An independent speech/language evaluation was conducted on March 17, 1998. On the Peabody Picture Vocabulary Test - Third Edition (PPVT-3), the child achieved an age equivalent of 3-6 (50th percentile) for receptive language. The evaluator reported that the child had delayed expressive language skills and a phonological disorder, characterized by highly unintelligible speech, especially out of context. The evaluator recommended that the child continue to receive three individual and two group sessions of speech/language therapy per week (Exhibit H).
On March 18, 1998, the CPSE recommended that the child continue to be classified as a preschool student with a disability and be enrolled on a 12-month basis in an 18:2+2 class at The Opportunity Preschool (TOPS) during the 1998-99 school year. The child’s daily program was for five hours. Her recommended related services included individual speech/language therapy twice per week, group speech/language therapy twice per week, individual physical therapy once per week, group physical therapy once per week and individual occupational therapy twice per week. Her IEP for the 1998-99 school year indicated that the child was to spend 50% of her time in special education (Exhibit A). The record indicates that TOPS provides a language-based, integrated instructional program (Exhibit J). The child’s class of 18 students consisted of 12 regular education students and six children with disabilities.
In a progress report, dated December 2, 1998, the child’s physical therapist indicated that the child was functioning at a 3.5 year level in gross motor skills as measured by the Michigan Early Development Profile. The therapist recommended continuation of individual therapy once per week and group therapy once per week. An educational evaluation was conducted in January 1999 by the child's special education teacher at TOPS. On the Mullen Scales of Early Learning, the child achieved scores in the average range in the areas of visual reception, fine motor skills, receptive language and expressive language skills. The teacher reported that the child's skills had begun to emerge, and she "strongly recommended" placement in an inclusion kindergarten for the fall of 1999. She stated that the child had proven herself able to handle the curriculum and to exhibit appropriate social skills in an inclusion setting (Exhibit J).
A speech/language evaluation was conducted on January 29, 1999. On the expressive communication portion of the PLS-3, the child achieved a grade equivalent of 3-1, and percentile of 6. Her standard score was 77, which was 1.5 standard deviations below the mean. On the EOWPVT-R, the child achieved a standard score of 94, an age equivalent of 4-1 and a percentile of 34. The evaluator recommended continuation of individual speech/language therapy twice per week and group speech/language therapy twice per week (Exhibit J).
An occupational therapy summary, dated February 10, 1999, revealed that the child achieved a raw score of 8 on the Development Test of Visual Motor Integration. The score placed her in the 39th percentile for her age. The therapist reported that this was a marked improvement over the child's score from September 1998 (Exhibit J). I note that the score from September 1998 was not included in the record.
In March 1999, the CPSE chair referred the child to petitioner’s Committee on Special Education (CSE), which would assume responsibility for the child during the 1999-2000 school year (Exhibit M). In April 1999, the CPSE recommended that the child's program at TOPS continue through the summer (Exhibit I). A special education teacher who observed the child at TOPS in May 1999 reported that the child displayed appropriate social behavior and was willing to repeat herself when her speech was not understood. She exhibited good hand-eye coordination and knew her letters, colors, shapes, address and phone number (Exhibit P). At the end of the school year, the child's special education and regular education teachers at TOPS both recommended an integrated kindergarten program with related services for the 1999-2000 school year (Exhibit 6). About the same time, the parents requested a full-day kindergarten program for their child (Exhibit O).
A CSE meeting was held on June 3, 1999. No regular education teacher or parent member participated in the meeting. The CSE recommended that the child be placed in a self-contained special education kindergarten class in petitioner’s Accomsett Elementary School for the 1999-2000 school year. The meeting was adjourned because no parent member was present (Exhibit Q) and/or to allow the parents to visit the proposed classroom (Transcript pp. 201-202). On June 14, 1999, the CSE reconvened with a parent member, but no regular education teacher. The CSE recommended that the child be classified as multiply disabled. It also recommended placement in the self-contained class at the Accomsett Elementary School. The class was to have a 12:1+1 student to staff ratio, and was to be in session for six hours per day. The CSE recommended the related services of 30 minutes of individual speech/language therapy twice per week and 30 minutes of group speech/language therapy twice per week, as well as 30 minutes of "push-in" physical therapy and occupational therapy twice per week. Push in means that the related services were to be provided to the child in her classroom (Exhibit 1).
In a letter dated August 24, 1999, the parents' attorney informed the Board of Education that the child’s mother did not agree with the recommended program and intended to place her child in a private school and seek tuition reimbursement (Exhibit B). By letter dated October 6, 1999, petitioner’s attorney proposed as a settlement that the child be placed in a full day program to be equally divided between a self-contained class and a regular education class. The child’s related services were to remain unchanged (Exhibit 7). Respondents rejected that proposal. The Board of Education’s attorney then suggested that the child be placed in a regular education kindergarten class with the same related services (Exhibit 8). The parents also rejected that recommendation.
An impartial hearing was commenced on October 21, 1999. The hearing continued over the course of five days and ended on December 12, 1999. Respondents argued that they were entitled to reimbursement of their child's tuition at Ivy League because the school district did not recommend an appropriate placement and Ivy League was an appropriate placement for the child. Respondents further argued that Ivy League was the child's pendency placement because it provided a preschool curriculum like that of TOPS, which was the child’s last agreed upon placement. They asked the hearing officer to find that the Board of Education should deliver their daughter’s related services to her at Ivy League. The Board of Education asserted that it had offered to provide an appropriate placement to the child, and that Ivy League could not be considered to be her pendency placement because it had not been approved as a school for children with disabilities by the State Education Department. It argued that it was not required by law to provide related services to the child at Ivy League.
The hearing officer rendered his decision on February 2, 2000. He determined that the IEP prepared at the CSE’s meeting on June 14, 1999 was invalid because there was no regular education teacher member of the CSE at the meeting. Noting that the Board of Education had taken the position that the June 3 and June 14 sessions were to be considered as a single meeting, the hearing officer pointed out that the required parent member of the CSE had not been present on June 3. The hearing officer further found that the child’s IEP was substantively defective as well because it did not include a statement of the extent to which the child would participate in a general education curriculum (see 34 CFR 300.347[a]) and because the recommended placement in a self-contained class was not the least restrictive environment in which the child could have been educated. The hearing officer ordered petitioner to investigate whether the neighboring Commack Union Free School District District could accommodate the child in its integrated kindergarten class. In the event that the Commack School District could not accommodate the child, the hearing officer ordered petitioner to reimburse respondents for the cost of their child's tuition at Ivy League, and to provide related services at Ivy League during the child's lunch hour. The hearing officer concluded that the issue of pendency was moot. The Commack Union Free School District was unable to accommodate the child. On March 1, 2000, the hearing officer issued a final decision awarding respondents tuition reimbursement for the cost of their child's tuition at Ivy League for the 1999-2000 school year.
Petitioner argues that the hearing officer erred in ordering it to reimburse respondents for their daughter’s tuition at Ivy League. A board of education may be required to pay for educational services obtained for a student by his or her parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent's claim (Burlington School Comm. v. Dep't of Educ., 471 U.S. 359 ). The failure of a parent to select a program known to be approved by the state in favor of an unapproved option is not itself a bar to reimbursement (Florence County School Dist. Four v. Carter, 510 U.S. 7 ). 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; Application of a Handicapped Child, 22 Ed Dept Rep 487 ). To meet its burden, a board of education must show that the recommended program is reasonably calculated to confer educational benefits (Board of Educ. v. Rowley, 458 U.S. 176 ). The recommended program must also be provided in the least restrictive environment (34 C.F.R. § 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 student's needs, establishes annual goals and short-term instructional objectives related to those needs, and provides for the use of appropriate special education services (Application of a Child with a Disability, Appeal No. 93-12; Application of a Child with a Disability, Appeal No. 93-9).
I find that the Board of Education has failed to meet its burden of proof because the CSE that developed the child's IEP was not properly constituted. State regulation requires that IEPs be developed by a CSE that includes a parent member of a student with a disability residing in the school district or a neighboring school district (8 NYCRR 200.3[a][viii]). The State Review Officer has consistently held that IEPs lacking the required parent member are invalid (Application of a Child with a Disability, Appeal No. 00-012; Application of a Child with a Disability, Appeal No. 99-2; Application of the Board of Education of the North Rose-Wolcott Central School District, Appeal No. 97-1). Federal and state regulations also require that the CSE include a regular education teacher if the child is or may be participating in the regular education environment (34 CFR § 300.344 [a]; 8 NYCRR 200.3[a][ii]). The child’s IEP for the 1999-2000 school year was developed at meetings that took place on June 3 and June 14, 1999. No parent member was present at the June 3 meeting, and no regular education teacher was present at either the June 3 or the June 14 meetings (Exhibit 1). In the absence of the required members, petitioner’s CSE could not prepare a valid IEP for respondents’ daughter (Application of a Child with a Disability, Appeal No. 96-87).
Petitioner’s appeal could not be sustained even if its CSE had been properly composed. An IEP must include a statement of measurable annual goals, including benchmarks or short-term objectives (34 CFR 300.347[a]). Annual goals are intended to be statements of what a child may reasonably be expected to achieve over the course of the school year, with the assistance of appropriate special education services. The record reveals that the CSE did not prepare its own annual goals for the child to achieve in kindergarten during the 1999-2000 school year. Instead, it adopted the preschool goals suggested by the TOPS staff for use during the summer of 1999. While some of those goals may have been appropriate during the ensuing 1999-2000 school year, there is simply no evidence that the CSE made any attempt to ascertain what would be appropriate annual goals for the entire school year.
I must also concur with the hearing officer’s determination that placement in the recommended 12:1+1 special education class would have been inconsistent with the requirement that each child with a disability be placed in the least restrictive environment (34 CFR 300.500; 8 NYCRR 200.6[a]). The record shows that this child had a successful year in her TOPS preschool class, which consisted of 12 regular education and six special education students. Although she continued to need some special education instruction during the 1999-2000 school year, I am not persuaded by the evidence that she required a full-time special education placement, which is what petitioner’s CSE recommended for her.
The student's parents bear the burden of proof with regard to the appropriateness of the services provided by Ivy League during the 1999-2000 school year (Application of a Child with a Disability, Appeal No. 95-57; Application of a Child with a Disability, Appeal No. 94-29; Application of the Board of Educ., Appeal No. 93-34). In order to meet that burden, they must show that the private school offered an educational program which met their child’s special education needs (Burlington School Comm. v. Department of Educ., 471 U.S. 359, 370 ; 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).
I find that Ivy League was an appropriate placement for the child. This child needed a program which could make accommodations for her physical and speech disabilities and allow her to interact with non-disabled peers while being introduced to a curriculum which was appropriate to her cognitive development. Ivy League’s pre-school program met those needs and provided the child with an exposure to other children who could model appropriate language for her. Upon reviewing the testimony by the child’s teacher at Ivy League, I find that her description of the classroom activities and the child’s participation in them indicates that the private school addressed the child’s academic needs and prepared her for participation in a regular education kindergarten. I find that the parents have sustained their burden of proving the appropriateness of the program at Ivy League.
The third criterion for an award of tuition reimbursement is whether the parents' claim is supported by equitable considerations. There is no indication in the record that respondents failed to cooperate with the CSE. Accordingly, I find that equitable considerations support the parents' claim for tuition reimbursement. Having found that respondents have prevailed on all three criteria for an award of tuition reimbursement, I must dismiss the Board of Education’s appeal from that part of the hearing officer’s decision.
The Board of Education also appeals from the hearing officer’s decision requiring it to provide the child’s related services to her at the Ivy League School. The child was receiving one 45-minute session of occupational therapy at petitioner’s preschool program in the morning before class began at the Ivy League School. Four days per week, she was transported by her mother from the Ivy League School at 2:30 p.m. to petitioner’s Accomsett Elementary School for three 30-minute sessions of speech therapy and one 30-minute session of physical therapy. Consequently, the child was not receiving all of the related services to which she was entitled under her IEP. I agree with the Board of Education that as a general proposition a school district is not obliged to provide special education services at the site of a private school selected by a child’s parent (Bd. of Ed. v. Weider et al., 72 NY 2d 174 ). However, petitioner had an obligation to provide this child with a free appropriate public education, including related services, which it failed to meet. I find that the hearing officer did not exceed his discretion in providing redress to respondents by requiring that their child’s related services be provided at the Ivy League School.
Respondents request compensatory education for the related services their child had missed due to the school district's failure to implement the IEP. However, they have not cross-appealed from the hearing officer’s decision which did not provide them with such relief. In the absence of a cross-appeal, I must decline their request.
THE APPEAL IS DISMISSED.