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Application of the BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK for review of a determination of a hearing officer relating to the provision of educational services to a child with a disability


Hon. Michael D. Hess, Corporation Counsel, attorney for petitioner, Alexandra Michalos, Esq., of counsel

Neal Howard Rosenberg, Esq., attorney for respondent


         Petitioner appeals from the decision of an impartial hearing officer which ordered the Board of Education to reimburse respondent for the cost of her son’s tuition at a private school during the 1999-2000 school year. The appeal must be dismissed.

        At the outset, I note that the hearing transcript which the Board of Education provided to me is single-spaced, while the transcript which the hearing officer used was apparently double-spaced. The references to the transcript in this decision are to the single-spaced version of the transcript.

        Respondent’s son, who was twelve years old at the time of the hearing, has been classified by petitioner’s Committee on Special Education (CSE) as learning disabled since May 1997. His learning disability is manifested by delayed visual/fine motor skills, and weakness in reading decoding, inferential reading, and spelling. The student’s classification is not in dispute in this proceeding.

        The student attended Columbia Prep, a private school, from kindergarten through the third grade. While in the first grade, he began receiving specialized assistance. However, he reportedly could not keep up with his peers at Columbia Prep. At the beginning of fourth grade, respondent unilaterally placed her son in the Stephen Gaynor School (Gaynor), a non approved private special education school in Manhattan, (Transcript p. 143). The student was referred to the CSE while attending Gaynor. The CSE initially recommended that the student be enrolled in one of petitioner’s self-contained modified instructional services-I (MIS-I) classes. The student’s mother did not accept the CSE’s recommendation, and the student attended Gaynor during the 1997-98 school year. In June 1998, the CSE recommended that the student receive resource room services during the 1998-99 school year. Respondent rejected the CSE’s recommendation, and again enrolled her son in Gaynor.

        In preparation for the CSE’s annual review at the end of the 1998-99 school year, the student was observed in his science and writing/language arts classes at Gaynor in December 1998 (Exhibit 7). He volunteered to read from a text and provided a sentence for a word selected by his science teacher. The observer reported that respondent’s son was an active participant in the science class. In the writing/language arts class, the student had some difficulty with oral reading, but he exhibited good comprehension skills. The student was able to answer comprehension questions and was able to give complete answers. He demonstrated the ability to use critical thinking skills, and was able to ask relevant questions. The student’s performance during this observation was consistent with what had been observed during a prior observation of him at Gaynor in May 1998 (Exhibit 12).

        A social history update was conducted on January 11, 1999. Respondent reported that she felt her son’s program at Gaynor was meeting his academic needs, although she realized her son was significantly behind academically. She reported her son was beginning to develop strategies to learn and beginning to feel some success in his school performance, which she believed boosted his self-esteem (Exhibit 5).

        An educational evaluation was also conducted on January 11, 1999. The evaluator reported respondent’s son worked at an appropriate pace and appeared to understand directions and did not ask for clarification or to have items repeated (Exhibit 8). On the Woodcock Johnson Tests of Achievement, the student’s broad reading skills were in the very low to low average range, with passage comprehension skills in the low average to average range. His scores on the reading vocabulary subtest and the word attack subtest were both in the low to low average range. The student’s math skills were reported to be in the average range. On the individualized education program (IEP) which it prepared for the student, the CSE indicated that his instructional levels were at beginning to mid-second grade for decoding, beginning to mid-third grade for reading comprehension and basic writing, and mid-fourth grade in expressive writing (Exhibit 2).

        A psychological evaluation was conducted on February 4, 1999 (Exhibit 9). The evaluator reported that respondent’s son had achieved a verbal IQ score of 95, a performance IQ score of 91, and a full scale IQ score of 93, all of which were in the average range. The student’s short-term auditory memory, which was in the low average range, was a relative weakness for him. On the performance scale subtest scores from very superior to borderline, with the latter on a subtest requiring him to sequence visually presented social situations. On the Bender Visual Motor Gestalt Test, respondent’s son achieved an age equivalent range of eight years, six months (8-6) to eight years, eleven months (8-11), indicating some delay in visual/fine-motor development. His responses to projective test questions were logical and conventional, but he manifested some feelings of inadequacy and doubt. At the hearing, the school psychologist testified that the student’s disability might be manifested most noticeably in the classroom by difficulty following oral directions (Transcript p. 10).

        In January 1999, Gaynor reported that the student’s reading fluency and encoding (spelling) had improved since September, and that he had learned to answer comprehension questions in complete sentences. It also reported that his grammar had improved, and that he was doing well in math, social studies, and other subjects (Exhibit 10). In a separate report, Gaynor reported that the student’s reading skills were at an approximately mid-second grade level, his writing skills were at an early second grade level, and his math skills were at a beginning fourth grade level (Exhibit A).

        On May 12, 1999 the CSE held its annual review to recommend appropriate services for the student during the 1999-2000 school year. It recommended that he be enrolled in an MIS-I class with a student: staff ratio of fifteen students to one teacher (15:1). The CSE’s rationale for a special class placement was that the student required modifications in all curriculum areas because of his academic delays (Exhibit 2). The CSE further recommended that he receive 30 minutes of small group counseling each week to address his social and emotional needs.

        Respondent declined to meet with petitioner’s placement officer on May 12, 1999 (Transcript p. 14; Exhibits 3, 4, and 19). I note that in a letter dated May 21, 1999, the placement officer advised respondent that he was not able to offer a specific placement at that time and that a specific placement would be offered by no later than September 7, 1999 (Exhibit D). On August 3, 1999, the student was offered a placement in an MIS-1 class at petitioner’s JHS 54 (Exhibit 1). At the hearing in this proceeding, a witness from that school described it as "Middle School 54" (Transcript p. 29). By letter dated August 6, 1999, respondent’s attorney advised an assistant CSE chairperson that respondent did not accept the CSE’s recommendations and would place her son in a private school (Exhibit 16). The attorney also indicated that respondent would request an impartial hearing.

        An impartial hearing was held on January 6, 2000 and February 1, 2000. Both parties were represented by counsel. The school psychologist member of the CSE testified that placement in the MIS-I program would, in his opinion, have addressed the student’s reading deficits and provided him with an appropriate education in the least restrictive environment.

        The teacher of the MIS-I class which was offered to respondent’s son testified that instruction was departmentalized for her students. Her class consisted of fifteen students, five girls and ten boys ranging from twelve to fourteen years in age. All of her students were learning disabled, and none had management needs which were not addressed by being in a self-contained class. Some of the students received counseling, and some students received speech/language therapy. Some students received English as a second language (ESL). The teacher testified that her students were of average intelligence, and that their reading skills generally ranged between the fourth and six grades, with stronger comprehension than decoding skills (Transcript p. 32). She noted that respondent’s son had good expressive language skills relative to the students in her class. She concluded that with a decoding level of mid-second grade, a reading level of beginning to mid-third grade, and a writing level of beginning to mid-third grade, respondent’s son would have been suitably placed in her class, probably in an instructional group of three to four (Transcript pp. 33-34).

        The educational evaluator who assessed the student’s skill in January 1999 testified that he had difficulty with sight/sound relationships, which affected his ability to decode words and to spell them. She also testified that his writing mechanics skills, i.e., capitalization and punctuation, were weak. His math skills were at about the fifth grade level (Transcript p. 79). The evaluator did not observe any speech/language problem (Transcript p. 85). Having reviewed the student’s IEP for the 1999-2000 school year, the educational evaluator opined that the MIS-I program would be appropriate because it would provide the structure he needed for reading and writing (Transcript p. 80). However, she was unfamiliar with Middle School 54.

        A speech/language pathologist from Gaynor testified that respondent’s son required speech/language services to address delays in his expressive and receptive language skills. She asserted that the student had difficulty organizing his thoughts and formulating complex sentences, and that his auditory processing and comprehension were weak (Transcript p. 89). The speech/language pathologist acknowledged that she had not formally evaluated respondent’s son, but she asserted that he had been screened for speech/language services by another speech/language pathologist at Gaynor (Transcript p. 93). She testified that she worked with respondent’s son for 30 minutes twice per week in a group of two, and went into his classroom for 30 minutes once per week. In class, she assisted him by breaking down information presented by his teacher into smaller units. Although the student had made progress since the witness began working with him in the 1998-99 school year, she opined that he continued to have difficulty functioning in a group setting (Transcript p. 91). She also opined that the student’s speech/language needs could not be met exclusively in the classroom (Transcript p. 96).

        A reading specialist employed by Gaynor testified that she worked with respondent’s son for 60 minutes four times a week in a group of four students (Transcript pp. 99-100). She opined that he required small group instruction to address severe dyslexia and "tracking issues". She agreed with the speech/language pathologist that the student had language processing "issues" (Transcript p. 106). The reading specialist further opined that the student required a very structured, multi-sensory and intensive study of phonics. She testified that when she began working with the student in the 1998-99 school year, he was reading at a mid-first grade level, which improved to a beginning third grade level by the end of the school year (Transcript p. 104). The reading specialist opined that a 15:1 class would not provide sufficient support to respondent’s son, and that he needed the intensity of services provided by Gaynor (Transcript p. 101).

        The student’s classroom teacher at Gaynor testified there were nine children in her class, and that an additional teacher was present one-half of the time (Transcript p. 109). The additional teacher reportedly assisted the reading teacher in her reading group of four students. The classroom teacher testified that as an experiment, she had placed the student in her other reading group of four students, but he was unable to independently read his assignments and keep up with the group. She further testified that she had been providing one-to-one instruction to him before and after school because his needs were so great (Transcript p.111). The student was instructed in a group of six for math and nine for social studies and science. The teacher opined that an MIS I class of 15 students would not be appropriate for respondent’s son because he would not receive the feedback and the focus necessary to meet his individual needs. She further opined that the IEP the CSE had prepared did not address the student’s language needs, which were being addressed at Gaynor (Transcript p. 114).

        Respondent acknowledged that she had been advised by the CSE at the May 12, 1999 meeting that it would be recommending MIS-I placement. She testified that on or about May 21, 1999, she received a notice from the Board of Education advising her that an MIS-I placement would be recommended, but that placement would be deferred (Transcript p.135). Respondent then advised the CSE that she did not have sufficient information to make a decision about her son’s placement, and did not consent to the placement recommendation. Respondent did not remember receiving the notice of final recommendation in August 1999 indicating that a placement would be available at Booker T. Washington Intermediate School (Middle School 54). In any event, respondent testified that she would not have accepted that placement because it was too late to inform her son he would be going to a new school (Transcript p. 136). She acknowledged that her son had never attended a public school, but denied having any aversion to a public school education for her son. When questioned by the hearing officer, respondent testified that she would have considered a public school program if it had been offered at the right time, but she continued to contend she never received the final notice of recommendation (Transcript p. 146).

        In his decision which was rendered on March 2, 2000 and amended on March 7, 2000, the hearing officer rejected respondent’s objections to the timeliness of the CSE’s annual review and its use of a "deferral notice", as well as her contention that the CSE’s recommendation was deficient because it did not include the related service of speech/language therapy. However, he was persuaded by the testimony of the classroom teacher and reading teacher at Gaynor that the student required a smaller class for instruction that the 15:1 MIS-I class recommended by the CSE. He further found that the Board of Education’s witnesses had not adequately explained how the student would have been able to function in the MIS-I class with other students with stronger reading skills. The hearing officer concluded that the Board of Education had not met its burden of proving that it had offered to provide an appropriate educational placement to respondent’s son for the 1999-2000 school year. In addition, he found that the student had made progress while attending Gaynor, and he dismissed the Board of Education’s argument that Gaynor was too restrictive a placement. The hearing officer also found that respondent had cooperated with the CSE. Accordingly, he ordered the Board of Education to reimburse the parents for the cost of the student’s tuition at Gaynor during the 1999-2000 school year.

        The Board of Education contends that the hearing officer erred in finding that it had not met its burden of proof with regard to the appropriateness of the educational program which it had offered to provide in the MIS-I class at JHS 54. 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 [1983]). To meet its burden, a board of education must show that its recommended program is reasonably calculated to confer educational benefits (Board of Educ. v. Rowley, 458 U.S. 176 [1982]). The recommended program must also be provided in the least restrictive environment (34 C.F.R. § 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 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 have examined the proposed IEP (Exhibit 2). I find that it generally reflects the results of the student’s most recent evaluations. However, I note that the school psychologist reported that short-term auditory memory was an area of relative weakness for the student, and it does not appear on the IEP. This appears to be directly relevant to the question of what should be the size of the student’s instructional group, because his teacher at Gaynor testified about the student’s need for repetition, as well as his inability to function in a group of 15 students in the proposed MIS-I class. Her testimony was supported by that of the reading teacher at Gaynor.

        There is also a question about the student’s language processing skills. Petitioner’s witnesses, none of whom was a licensed speech/language pathologist, testified that they had not observed signs of a language processing deficit. However, respondent presented testimony to the contrary by a licensed speech/language pathologist. Although respondent did not offer any written evidence of a formal assessment of her son’s speech/language skills, I find that she did present sufficient evidence to bring into question the adequacy of the CSE’s evaluation of her son. Under the circumstances, I find that the Board of Education has not met its burden of proof regarding the appropriateness of the educational program that it offered to provide to respondent’s son.

        Respondent bears the burden of proof with regard to the appropriateness of the services provided by Gaynor 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, the parent must show that the private school offered an educational program which met the student's special education needs (Burlington School Comm. v. Department of Educ., 471 U.S. 359, 370 [1985]; 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).

        Having reviewed the testimony by the student’s classroom and reading teachers and that of his speech/language pathologist, I find that the private school provided instruction which was tailored to meet the student’s special education needs. The classroom teacher described how she worked on math word problems and writing assignments with him (Transcript pp. 114-115). She also described her efforts to develop note taking and question strategies in the student’s social studies class (Transcript p. 117). The student’s reading teacher testified that he required the intensive individual instruction which she provided. She further testified that the student had made progress in knowledge of the phonic elements and in reading words in isolation (Transcript p. 102). As noted above, the speech/language pathologist provided both small group instruction and assistance in the student’s classroom. In the latter, she helped him break down information so that he could understand and retain it.

        I have also considered the student’s progress reports by Gaynor at the end of the 1998-99 school year (Exhibit A) and in the middle of the 1999-2000 school year (Exhibit B). Those reports reveal that the student made progress in his grade equivalent scores for reading decoding, comprehension and spelling from June 1999 to January 2000. While his math scores do not appear to have increased during that period, I note that the written description of the skills being covered in January 2000 suggests that progress was in fact made in math as well. There also appears to have been progress in the student’s writing skills. I find that respondent has met her burden of proof with respect to the appropriateness of the services provided to her son by Gaynor during the 1999-2000 school year.

        The Board of Education argues that equitable considerations do not favor respondent’s claim for an award of tuition reimbursement because respondent had no intention of placing her son in a public school program. It points out that the hearing officer found that respondent "…did not have much interest in sending her child to the public school in question". However, the hearing officer also found that respondent had responded to the CSE in a prompt and proper fashion, and that a parent’s preference for a private school placement is not dispositive of the parent’s claim for an award of tuition reimbursement (Application of a Child with a Disability, Appeal No. 96-53). I concur with the hearing officer’s determination that equitable considerations support respondent’s claim for tuition reimbursement. I have considered petitioner’s other arguments which I find to be without merit.


Topical Index

District Appeal
Educational PlacementSpecial Class
Equitable ConsiderationsParent Cooperation
Present Levels of Performance
ReliefReimbursement (Tuition, Private Services)
Unilateral PlacementAdequacy of Instruction
Unilateral PlacementProgress