Application of a CHILD WITH A DISABILITY, by her parent, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the North Salem School District
Neal H. Rosenberg, Esq., attorney for petitioner
McGuire, Kehl & Nealon, LLP, attorneys for respondent, Marion C. Katzive, Esq., of counsel
Petitioner appeals from an impartial hearing officer's decision which denied her request for reimbursement for the cost of her daughter's tuition at Eagle Hill School (Eagle Hill), a private school for students with learning disabilities in Greenwich, Connecticut, for the 1999-2000 school year. Respondent cross-appeals from the hearing officer's order requiring its Committee on Special Education (CSE) to revise the student's individualized education program (IEP) because it assigned the same beginning and ending dates to the short-term objectives established for reading and language arts. The appeal must be sustained. The cross-appeal must be dismissed.
Petitioner's daughter was 11 years old and in the equivalent of the fifth grade at Eagle Hill at the time of the hearing in May 2000. Eagle Hill has not been approved by the New York State Education Department to provide instruction to children with disabilities. The student's educational history and evaluations were described in Application of a Child with a Disability, Appeal No. 00-042, which concerned the student’s placement during the 1998-99 school year. They will not be repeated here.
The CSE began preparing for the student's annual review in May 1999. She was in the equivalent of the fourth grade at Eagle Hill at the time. In a classroom observation conducted by one of respondent's special education teachers while the student was in a reading tutorial with one other student, the special education teacher noted that the student read a science passage aloud, in a high, somewhat immature voice (Exhibit 19). The student was able to identify key information from the passage that was written on an approximate second grade level. The special education teacher also observed the student working on her individual spelling packet in a writing class at Eagle Hill. The student worked slowly, and misspelled several words. The special education teacher did not observe any electronic speller or other device for the student to check her spelling. During a class discussion about a writing assignment, the student chatted with a classmate, and was reportedly fidgety. The special education teacher reported that the student was also enrolled in an oral language class that focused on pragmatic language skills.
At its annual review on June 15, 1999, the CSE discussed the May 1999 classroom observation, the student's reading level and her progress in reading. It noted that the student had received speech/language services to improve speech articulation once per week, and that her parents had reported that they had observed a significant change for the better in their daughter's emotional status. Current evaluation material from Eagle Hill was not available to the CSE at that time, so it deferred making a recommendation until a subsequent meeting (Exhibit 23).
When the CSE reconvened on July 1, 1999, there was no regular education teacher member in attendance at the meeting. The student's educational advisor from Eagle Hill participated by telephone. She reported that the student had demonstrated growth in reading and decoding using a multisensory approach, but continued to have deficits in her decoding skills. She indicated that the student was reading on a second to third grade instructional level. The advisor further indicated that the student had access to a word processor with a spell check function. The student had strong skills in addition and subtraction. However, despite her understanding of math concepts, she was reportedly unable to complete problems independently. The educational advisor reported that the student had difficulty structuring and using descriptions in her writing. Although the student was developing some writing skills, she was unable to incorporate them into practice, and she limited her use of words to those she knew how to spell. In discussing the student's language abilities, the educational advisor indicated that information had to be broken down into manageable components because the student would get lost when too much information was presented.
The CSE recommended that the student be placed in a special class for reading, language arts and math, and that she be enrolled in regular education classes for social studies, science, and special subjects. I note that the minutes of the July 1, 1999 CSE meeting that are attached to the IEP indicate that the CSE also recommended that the student receive consultant teacher services in her social studies and science classes three times per cycle of six days. However, those services are not listed in the IEP description of the special education and related services to be provided to the student (cf. 8 NYCRR 200.4 [d][iv]). The CSE further recommended that speech/language services be integrated into the student's social studies and science classes for the remaining three days of the cycle. Additionally, one 30-minute session of group speech/language therapy per cycle was recommended. A counseling assessment was scheduled for September 1999.
By letter dated September 8, 1999, respondent advised the student's parents that it had arranged for the special education services recommended by the CSE (Exhibit 29). However, the parents unilaterally enrolled their daughter in Eagle Hill for the 1999-2000 school year. In a December 1999 progress report, the educational advisor at Eagle Hill reported that the student had adjusted well to her schedule, despite having been placed in a different tutorial class in October (Exhibit 15). She noted that the student required continued remediation in reading.
On January 10, 2000, the parents requested an impartial hearing (Exhibit 31). The hearing was held on May 10 and 13, 2000. The hearing officer rendered his decision on July 3, 2000. He viewed the July 1, 1999 CSE meeting as a continuation of the June 15 meeting, and found that the CSE had been properly composed. Despite finding that the annual goals and short-term objectives on the student's IEP were consistent with her special education needs, the hearing officer determined that the IEP was flawed because each objective had the same beginning and ending dates, and the speech/language objectives lacked benchmarks. He found that such flaws did not invalidate the IEP, but ordered that the IEP be corrected. The hearing officer found that the student’s IEP was reasonably calculated to meet her individual needs and that it would yield educational benefits. He concluded that the Board of Education had met its burden of proving that it had offered to provide an appropriate educational program to petitioner’s daughter. Accordingly, he found that petitioner was not entitled to an award of tuition reimbursement for the 1999-2000 school year.
Petitioner appeals from the hearing officer's decision on a number of grounds. She argues that her daughter's IEP is procedurally inappropriate because it was developed by a CSE that did not have all of its required members. She also argues that the IEP is substantively inappropriate. Petitioner asserts that Eagle Hill is appropriate, and that equities support her request for tuition reimbursement.
Respondent cross-appeals from the hearing officer's determination that the student’s IEP was flawed. It argues that the hearing officer's order directing the CSE to correct the beginning and ending dates for the short-term objectives in reading decoding, comprehension and language arts should be set aside, or modified to reflect the student’s needs.
I will first address petitioner's claim that respondent did not prove the appropriateness of its recommended placement because its CSE failed to comply with federal and state procedural requirements and failed to offer a program that was substantively appropriate. A board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (Application of a Child Suspected of Having 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 ). 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 Suspected of Having a Disability, Appeal No. 93-9).
I find that respondent cannot meet its burden of proof with respect to the student’s IEP because the CSE that prepared the IEP did not have each of its required members. The record shows that a regular education teacher was present at the June 15, 1999 CSE meeting, but that the CSE did not make a final recommendation at that meeting because the evaluation material from Eagle Hill was not available. The record further shows that when the CSE reconvened on July 1, 1999 to review the additional information and make its final recommendation, there was no regular education teacher present. Federal regulations require that the CSE include a regular education teacher if the child is or may be participating in the regular education environment (34 C.F.R. § 300.344[a]). The CSE in this instance recommended that the student receive regular education instruction for social studies, science, and special subjects such as art, music, and physical education. In the absence of a required member, the CSE could not prepare a valid IEP (Application of a Child with a Disability, Appeal No. 96-87).
Having found that the IEP is invalid, it is not necessary that I address petitioner's other challenges to it. Additionally, my finding that the IEP is invalid renders respondent's cross-appeal moot because the cross-appeal challenges the hearing officer's order directing the CSE to correct the IEP.
Petitioner is seeking tuition reimbursement. 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 approved by the state educational agency is not itself a bar to reimbursement (Florence County School Dist. Four v. Carter, 510 U.S. 7 ). As stated above, the Board of Education bears the burden of demonstrating the appropriateness of the program recommended by its CSE. Because respondent cannot demonstrate the appropriateness of the recommended program, I must find that petitioner has prevailed with respect to the first criterion for an award of tuition reimbursement.
Petitioner bears the burden of proof with regard to the appropriateness of the services provided to her daughter by Eagle Hill 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, 471 U.S. at 370 ; Application of a Child with a Disability, Appeal No. 94-29).
The record shows that the student has difficulty decoding and spelling words, which affects her ability to read and write. The educational advisor from Eagle Hill testified that at the beginning of the 1999-2000 school year, the student was initially placed in a tutorial for one period per day to address her decoding weaknesses (Transcript p. 301). However, in October, the student's schedule was changed to include a second tutorial to enable her to benefit more from the program (Transcript p. 301). The student participated in the tutorial with three other students twice per day for 80 minutes (Transcript pp. 284-286). The tutorial focused on decoding and spelling. In addition to decoding and spelling, the tutorial provided instruction in reading comprehension and vocabulary, which are also areas of weakness for the student. The educational evaluator indicated that the student was decoding at a third to fourth grade instructional level in the tutorial (Transcript p. 295). In literature class, the student was reading material on a third grade level. Her reading had improved and her willingness to read had increased (Transcript p. 2294).
There is no dispute that the student also needed to receive speech/language therapy during the 1999-2000 school year. The Eagle Hill educational evaluator testified that individual speech/language therapy was provided on a pull-out basis once per week, and was designed to address the student's articulation and chronological skills (Transcript pp. 295, 306 and 307)). She indicated that the articulation issues had been resolved and the frequency of therapy was reduced to once every other week for 40 minutes. The educational evaluator testified that a behavior modification system was used in each class to address the student's use of a baby voice (Transcript p. 296).
Respondent argues that petitioner has not met her burden of demonstrating that the program at Eagle Hill addressed the student's educational needs in the least restrictive environment. It argues that placement at Eagle Hill removes the student from contact with her nondisabled peers and from the general education curriculum. Students with disabilities must be educated in the least restrictive environment (Individuals with Disabilities Education Act Amendments of 1997, 20 U.S.C. § 1412[a]). While parents are not held as strictly to the standard of placement in the least restrictive environment as school districts are, the restrictiveness of the parental placement may be considered in determining whether the parents are entitled to an award of tuition reimbursement (M.S. v. Board of Educ., 231 F.3d 96 [2d Cir. 2000]).
There is little dispute that the student requires a significant amount of primary special education instruction in order to receive an appropriate education. If the IEP which the CSE prepared and which I have found to be invalid on procedural grounds had been implemented, the student would have received primary special education instruction in reading, language arts, and mathematics, as well as specialized assistance from consultant teachers in science and social studies. Although Eagle Hill does not present the same opportunity for mainstreaming as a placement in respondent’s schools, I cannot conclude on that fact alone that it is inappropriate for the child. Based upon the information before me, I find that Eagle Hill offered an educational program which met the student's special education needs. Accordingly, I find that petitioner has met her burden of demonstrating the appropriateness of the program at Eagle Hill.
The third criterion for an award of tuition reimbursement is whether equitable considerations support the parent’s claim. There is no indication in the record that petitioner failed to cooperate with the CSE. I find that equitable considerations support the parent’s claim and that she is entitled to reimbursement for the cost of her daughter's tuition for the 1999-2000 school year.
THE APPEAL IS SUSTAINED.
THE CROSS-APPEAL IS DISMISSED.
IT IS ORDERED that the decision of the hearing officer is hereby annulled.
IT IS FURTHER ORDERED that respondent shall reimburse petitioner for the cost of her daughter's tuition at Eagle Hill for the 1999-2000 school year, upon petitioner’s submission of proof of payment of such tuition.