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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, Chad Vignola, Esq. and Deusedi Merced, Esq., of counsel

Neal Howard Rosenberg, Esq., attorney for respondents


         The Board of Education of the City School District of the City of New York appeals from an impartial hearing officer’s decision awarding respondents tuition reimbursement for their son’s private school placement during the 1999-2000 school year. The appeal must be dismissed.

        Respondents' son was an eleven-year old student attending the Steven Gaynor School (Gaynor) at the time of the hearing. Gaynor is a private school in Manhattan providing special education to students. It has not been approved for that purpose by the New York State Education Department. The student attended the Calhoun School, a private general education school, from pre-kindergarten to third grade. He then attended Gaynor from third grade to the present. The parties are in agreement as to his classification as learning disabled. Therefore, I do not review the appropriateness of the student’s classification (Hiller v. Brunswick CSD, 674 F. Supp. 73 [N.D. N.Y., 1987]).

        The student was initially referred to the Committee on Special Education (CSE) in May 1997. The CSE recommended that he be classified as learning disabled, and be placed in petitioner’s Modified Instructional Services I (MIS I) program in P.S. 163. The student did not enroll in the recommended program, and attended Gaynor during the 1997-98 school year (Transcript p 10-11). At its annual review in February 1998, the CSE recommended a placement in the MIS I program in P.S. 84. However, the student remained at Gaynor for the 1998-99 school year.

        In preparation for its annual review meeting for the 1999-2000 school year, the CSE reviewed updated evaluations including a social history update (Exhibit 1), an educational update (Exhibit 2), a psychological report (Exhibit 3), a classroom observation (Exhibit 4), a medical report (Exhibit 6), and written teacher and progress reports (Exhibits 7, 8). In the social history, the child’s mother reported that he was having difficulty with reading decoding, writing, and organizational skills in school, and required a great deal of help with his homework (Exhibit 1).

        The educational evaluation dated December 9, 1998 described the student as fidgety, but not distractible. His receptive language skills appeared to be intact, and he spoke in an articulate manner. On the Woodcock Johnson Tests of Achievement, the student achieved grade equivalents of 5.1 for letter-word identification, 6.4 for word attack, 5.7 for reading vocabulary, and 6.2 for passage comprehension. He scored a grade equivalent of 3.9 for dictation, which is a test of punctuation, spelling and word forms. In mathematics, he scored grade equivalents of 5.4 for calculation, 7.4 for applied problems, and 5.5 for quantitative concepts. His broad knowledge scores were 6.0 for science, 4.8 for social studies, and 4.2 for the humanities (Exhibit 2).

        The psychological report dated January 28, 1999 described the student as well behaved, motivated and cooperative with the evaluation. His articulation and language processing skills were noted to be good and his overall efforts were noted as excellent. On the Wechsler Intelligence Scale for Children, he obtained a verbal IQ score of 110, a performance IQ score of 108, and a full-scale IQ score of 109. The evaluator noted that when last tested, the child had exhibited a 20-point disparity between verbal and performance IQ scores. Overall cognitive assessment results suggested high average to superior potential. On the Bender Gestalt Test, the student made two errors, suggestive of a mild perceptual motor delay. Projective testing revealed that the student had age appropriate interests and concerns (Exhibit 3).

        A classroom observation on March 18, 1999 in the student’s social studies class revealed a somewhat tired student who frequently readjusted his position. The student actively participated in the lesson, answering questions and engaging in class activities (Exhibit 4). A medical report was unremarkable, with the exception of a vision score of 20/30 in the left eye. A referral was made to an optometrist (Exhibit 6).

        In January 1999, Gaynor reported that the student’s independent reading was at the 3.5-4.0 grade level and his instructional level was at 5.0. It also reported that his spelling was at the third grade level, and his math skills were at the 3.5 grade level (Exhibit 8).

        The CSE’s annual review was conducted on April 14, 1999. The student’s parents attended the review. The CSE recommended that the child be classified as learning disabled, but be enrolled in a general education program with ten periods per week of consultant teacher services for English, language arts, and social studies (Exhibit 9). It indicated on the student’s individualized education program (IEP) that he required assistance transferring known skills to the general classroom setting, but did not need to be removed from the classroom to receive assistance. The testing modifications of extended time, separate location, and having test questions read to the student were recommended by the CSE. The IEP included three annual goals to improve his handwriting, spelling, and outlining skills. The CSE also recommended that the child receive 30 minutes of counseling in a group of five students once per week, with an annual goal of making a successful transition from a special education environment to a general education class.

        The parents requested a meeting with the district placement officer (Exhibit 11). They were sent a final notice of recommendation on or about July 9, 1999, offering them a placement in petitioner’s M258/J118 (Exhibit 12). Respondents chose to enroll their son in Gaynor for the 1999-2000 school year. On or about September 10, 1999, they requested an impartial hearing. The hearing was held on January 27 and March 8, 2000.

        The school psychologist member of the CSE testified based on his review of the psychological evaluation that the student did not have significant management needs, and should have been able to adjust to a regular education setting (Transcript p 19). He opined that the recommended placement in a mainstreamed setting was appropriate to meet the student’s needs (Transcript p. 19-22). The educational evaluator member of the CSE testified that a consultant teacher could help the student transfer skills to the classroom and help implement the modifications the CSE had recommended (Transcript p. 46). Those modifications included the use of graphic organizers, index cards to keep his place while reading, and an editing checklist. She opined that the recommended program would have been appropriate for the child (Transcript p. 51).

        The supervisor of education evaluators for Community School District 3, (supervisor) testified that the consultant teacher model would benefit respondents’ son because the consultant would work with him in his classroom to apply his skills. She described the ways in which a consultant teacher could assist the student to take notes, create an outline, and become a better writer (Transcript pp.82-83). In addition to such direct service (see 8 NYCRR 200.1[1][l][1]), the consultant teacher would provide indirect service by working with the child’s teacher to adapt the curriculum to the child’s needs. As an example, she explained that the consultant teacher would work with the child’s regular education teacher to make sure the latter used techniques to ensure that the student understood oral directions. The supervisor testified that the CSE had not specified on the student’s IEP the amounts of time to be devoted to direct and indirect consultant teacher services in order to give the classroom teachers and the consultant teacher flexibility during the school year to adjust to the student’s changing needs.

        The student’s homeroom teacher at Gaynor testified that the student’s disabilities were manifested by difficulties in language-related areas including receptive language, auditory processing, short-term memory, organizational skills, word retrieval and writing. The student was receiving reading instruction in a group of nine students and math instruction in a group of seven students. He received remedial reading twice per week in a group of two students and once per week in a classroom setting. The teacher testified that respondents’ son had made very good progress during the 1999-2000 school year, but he opined that the student would not have been appropriately placed in a mainstreamed setting during that school year. There are no opportunities for mainstreaming at Gaynor (Transcript p. 114).

        The student’s mother testified that she had declined the public school placement because she did not believe it would meet her son’s educational needs. She further testified that no one at the CSE had explained consultant teacher services to her, but that in any event she did not believe that they would be adequate for her son (Transcript pp. 117-118)

        In her decision which was rendered on April 4, 2000, the hearing officer found that the educational program the CSE had recommended was inappropriate for two reasons. First, the CSE had failed to describe the student’s consultant teacher services with sufficient specificity on his IEP. Second, the recommended services did not address the range of the student’s special education needs. The hearing officer further found that the student’s parents had met their burden of proving the appropriateness of Gaynor’s services for their son. She ordered the Board of Education to promptly reimburse respondents upon receipt of proof of their payment of the student’s tuition for the 1999-2000 school year.

        The Board of Education may be required to pay for education 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 of Massachusetts, 471 U.S. 359 [1985]). The fact that the facility selected by the parent(s) to provide special education to the child is not approved as a school for children with disabilities by the State Education Department (as in the instant case) 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[1993]).

        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 Disability, Appeal No. 92-7; Application of a Child with a Disability, Appeal No. 93-9). To meet its burden, the Board of Education must show that the recommended program is reasonably calculated to allow the child to receive educational benefit (Board of Education of Hendrick Hudson Central School District v. Rowley, 458 U.S. 176, 206-207 [1982]), and that the recommended program is the least restrictive environment for the child (34 CFR 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, provides for the use of appropriate special education services to address the student’s special needs, and establishes annual goals and short-term instructional objectives which are related to the student’s educational deficits (Application of a Child with a Disability Appeal No. 93-9; Application of a Child with a Disability, Appeal No. 93-12). I have reviewed the student’s IEP, and I find that it accurately reflects the results of his evaluations. Respondents assert that their son’s IEP goals are not appropriately measurable. I agree that the goals are written in fairly general terms. However, I find that the supporting short-term objectives provide the necessary specificity.

        The Board of Education challenges the hearing officer’s finding that the IEP is defective because the CSE failed to allocated the consultant teacher’s time between direct services, i.e., teaching the child, and indirect services, i.e., working with the child’s regular education teachers. It asserts that state regulation does not require an IEP team (CSE) to indicate whether the consultant teacher services which it recommends shall be direct or indirect. Although state regulation does not explicitly provide that a CSE must specify how much of a consultant teacher’s services will be direct and how much will be indirect, that is not dispositive of the matter. As was noted by the State Review Officer in Application of a Child with a Disability, Appeal No. 97-5, 8 NYCRR 200.6(d)(2) explicitly provided that "[E]ach student with a disability requiring consultant teacher services shall receive direct and/or indirect services consistent with the student’s IEP for a minimum of two hours each week". He reasoned that there would be no way to reasonably enforce this regulatory requirement if a child’s IEP did not specify how much time would be spent providing direct services and how much time would be spent providing indirect services. The same reasoning was adopted in subsequent decisions: Application of the Bd. of Ed. City School District City of Buffalo, Appeal No. 97-66; Application of a Child with a Disability, Appeal No. 98-24; Application of a Child with Disability, Appeal No. 99-66). I have considered the opinion letter by a VESID representative which petitioner introduced into evidence (Exhibit 14). I must respectfully point out that it does not address the issue of enforceability. I recognize the point made by petitioner’s witness at the hearing that a student’s needs change during the course of the school year. However, that does not afford a basis for concluding that a CSE should not specify the special education services which it is recommending in a student’s IEP. Therefore, I find that petitioner’s challenge to this portion of the hearing officer’s decision is without merit.

        Petitioner also challenges the hearing officer’s finding that the CSE’s recommended program was inadequate to meet the range of the student’s special education needs. Although the student’s performance on a standardized achievement test did not reveal a significant deficit in any academic skill, with the possible exception of writing, the hearing officer nevertheless found that the student’s performance during his educational and psychological testing "is not really relevant to his classroom performance". The hearing officer asserted that the student could not remain focused in a regular education classroom, and referred to the observation report (Exhibit 4). I must note that while the student played with a paper clip and shifted in his seat during the observation, there is nothing in the report to suggest that the child did not keep up with the class discussion or failed to respond correctly to questions in class. There is no evidence of any diagnosis of attention deficit disorder or attention deficit hyperactivity disorder in the record. I recognize that there may be some difference between a child’s performance on individualized tests and his performance in class. However, I find that there is no basis in the record for the hearing officer’s sweeping statement that the child’s performance during psychological and educational testing was irrelevant to his classroom performance.

        The hearing officer referred to the student’s difficulty transferring information into a classroom situation, his need for extra time to read materials, and for directions to be reiterated in concluding that the child required a self-contained placement in order to benefit from his educational program. This conclusion was apparently premised upon the testimony given by the child’s teacher at Gaynor. The teacher described a child whose needs were clearly more severe than had been found by the CSE. As noted above, the child’s standardized achievement test scores indicated that he was generally performing at an acceptable level, with the exception of his writing skills. However, when he was tested in December 1998, the student had already been receiving specialized instruction at Gaynor for almost one and one-half years. Upon the limited record which is before me, I cannot disagree with the hearing officer’s finding that the part-time special education which the CSE had recommended for the child would not have been adequate to meet his needs.

        Respondents bear 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, they 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). Parents who unilaterally place their children in private schools are not held as strictly as a board of education is to the least restrictive environment requirement. Nevertheless, the restrictiveness of the private school placement may be considered in determining whether the parent is entitled to an award of tuition reimbursement (M.S. v. Bd. of Educ., 231 F.3d 96 [2d Cir. 2000]; Application of a Child with a Disability, Appeal No. 99-85).

        Gaynor is a small school of approximately 120 students from ages six to 13 who have various disabilities (Transcript p.94). As noted above, respondents’ son was taught in small classes of ten students, with speech/language therapy and reading remediation in a group of two students. His homeroom teacher described the techniques that were used to teach this student at Gaynor, e.g., to help him organize and elaborate his thoughts, develop his vocabulary, and improve his comprehension. I concur with the hearing officer’s finding that respondents had met their burden of proof with respect to the appropriateness of the services provided to their son by Gaynor during the 1999-2000 school year.

        The third criterion for an award of tuition reimbursement is that the parents’ claim for reimbursement must be supported by equitable considerations. There is nothing in the record to indicate that respondents did not cooperate with the CSE. I find that respondents’ claim is supported by equitable considerations.


Topical Index

Annual Goals
District Appeal
Educational PlacementConsultant Teacher
Equitable ConsiderationsParent Cooperation
Unilateral PlacementAdequacy of Instruction