Application of a CHILD WITH A DISABILITY, by her parents, 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
Neal H. Rosenberg, Esq., attorney for petitioners
Hon. Michael D. Hess, Corporation Counsel, attorney for respondent, Blanche Greenfield, Esq., of counsel
Petitioners appeal from an impartial hearing officer's decision which found that respondent had offered to provide an appropriate educational program to their daughter during the 1999-2000 school year. Accordingly, the hearing officer denied petitioners' request to reimburse them for the cost of their daughter's tuition at Winston Preparatory School (Winston Prep). The appeal must be sustained.
Petitioners' daughter was fourteen years old when the hearing began on April 10, 2000. The child was first referred to the Committee on Special Education (CSE) in 1990. The CSE reportedly found that she was eligible to receive special education services, and recommended that she be placed in respondent’s modified instructional services-I (MIS-I) program. However, petitioners reportedly rejected that placement and kept their child in a nursery school (Transcript p.10). While in kindergarten at P.S. 41, the child was referred again to the CSE. In August 1992, the CSE recommended that she be classified as speech impaired and receive speech/language therapy. The parents reportedly rejected the CSE’s recommendation and placed their daughter in the Stephen Gaynor School (Transcript p. 10). The CSE subsequently recommended that petitioners’ daughter be classified as learning disabled and placed in an MIS-I class with speech/language therapy. However, the child remained at the Stephen Gaynor School for the first through sixth grades. In June 1998, the CSE recommended an MIS I placement for the 1998-99 school year (Transcript p. 11). Petitioners rejected the recommended placement and enrolled their daughter at Winston Prep in 1998, where she is currently enrolled.
A psychological evaluation of petitioners' daughter was conducted on January 20, 1999. On the Wechsler Intelligence Scale for Children, the child achieved a verbal IQ score of 101, a performance IQ score of 96, and a full-scale IQ score of 99. The student’s strengths were in comprehension of everyday life situations, social conventions, and sequential planning, and her weaknesses were in vocabulary, math, and manipulations. The child's perceptual motor skills were found to be below average. Her short-term visual and auditory memories were in the average range. The evaluator reported that the child was highly achievement oriented and anxiety ridden. She recommended counseling to help the child with her anxiety which was interfering with her learning and overall adjustment (Exhibit 9).
An educational evaluation was performed on February 23, 1999. The child achieved grade equivalent (and percentile) scores of 3.4 (3rd) for basic reading, 3.6 (6th) for reading comprehension, 4.9 (13th) for mathematics reasoning, 5.0 (5th) for numerical operations, 2.9 (1st) for spelling, 1.2 (1st) for written expression, and 5.7(27th) for listening comprehension on the Wechsler Individual Achievement Test. The evaluator reported that the student’s attention and concentration skills appeared to be mildly delayed for her age, and that she required refocusing at times (Exhibit 8).
Petitioners' daughter is small in stature. In a medical report dated March 13, 1998 it was noted that the child was 52.5 inches tall and weighed 56.5 pounds (Exhibit 12). Her pediatrician reported that the child has a slight hearing loss in the upper range, and diagnosed her as having an attention deficit, and frequent and recurrent sinus and otitis media (SOM) (Exhibit 12; Transcript p. 154). She also has scoliosis to a mild degree (Transcript p. 140).
On April 8, 1999, a speech/language therapist reported that the child's hearing was within normal limits for speech and language purposes. The student comprehended speech at normal conversational levels from all directions. Her spontaneous speech was completely intelligible. However, she was unable to process directives requiring comprehension of temporal vocabulary and sequential skills, and demonstrated poor auditory memory and immature vocabulary. The evaluator reported that the student’s spoken language was marked by deficits in syntax, particularly organizing complex thoughts into a grammatically correct sentence. She opined that the student would have difficulty performing age appropriate classroom functions, and recommended that the child receive speech/language therapy twice per week. (Exhibit 7). The CSE conducted its annual review on May 26th, 1999. The child’s teacher at Winston Prep participated by speakerphone in the CSE meeting. The CSE again classified the child as learning disabled and recommended an MIS-I class with a 15:1 student-to-teacher ratio. It also recommended that the student receive 30 minutes of counseling per week in a group of five, and 30 minutes of speech and language therapy twice a week in a group of five (Exhibit 3). In its written rationale, the CSE indicated that the student continued to have academic delays and would benefit from a modified curriculum within a full-time small class environment (Exhibit 2). On the individualized education program (IEP) which it prepared for the student, the CSE indicated that she could participate in lunch, assemblies, trips, and school activities with nondisabled peers, and that she would participate in state and local assessments, with more time allowed and at a special location with directions read to her (Exhibit 3). Petitioners were reportedly unable to meet with a placement officer at the conclusion of the CSE meeting on May 26, 1999 (Exhibit 6).
A Final Notice of Recommendation (FNR) indicating a placement at respondent’s Humanities High School in Manhattan was sent to the petitioners on June 15, 1999. The FNR did not indicate a specific MIS-I class in which the child was to be placed (Exhibit 1). The student’s mother visited the Humanities High School soon after receiving the FNR. When she visited the school, classes were out of session for the summer. She met with an administrator’s staff member, who was reportedly unable to provide the mother with information about a specific class for her daughter. The mother advised the staff member to notify the CSE that the school seemed large and was not a place where her daughter could learn easily, so it was an inadequate placement (Transcript pp. 42-43). Petitioners requested an impartial hearing, which was held on April 10 and June 7, 2000.
Petitioners' daughter attended Winston Prep at their expense during the 1999-2000 school year. The school has 103 students, all with learning disabilities (Transcript p. 108). The child was grouped for the entire day in classes with seven other girls with similar reading and math abilities (Transcript pp. 125-126). The school has a "focus" program to help students with receptive and expressive learning and language difficulties (Transcript p. 109). The focus teacher met with petitioners’ child daily for forty-two minutes, and the teacher oversaw all of the child's academic work (Transcript p. 120). The child received speech and language therapy at the school from her focus teacher, who is a speech language pathologist, and periodic counseling in a "Socialization and Communication" class (Transcript p. 118). The focus teacher testified that the child had improved her reading, writing and conversational skills while attending Winston Prep (Transcript p. 121). She opined that the child would be overwhelmed if placed in a class with as many as 15 students (Transcript p. 130).
The hearing officer rendered her decision on August 8, 2000. She found that the Board of Education had met its burden in showing that the educational program recommended by the CSE for the 1999-2000 school year was appropriate for petitioners’ daughter because the program would have addressed the student’s special education needs in the least restrictive environment. The hearing officer rejected petitioners’ assertions that a class size of 15 was inappropriate for their child, and that she required a protective environment because of her size and weight. Having found that respondent had offered to provide an appropriate educational program, the hearing officer dismissed petitioners’ claim for tuition reimbursement for the 1999-2000 school year.
Petitioners have raised several procedural violations in their petition that were not raised and addressed at the hearing. They challenge the qualifications of the regular education teacher member of the CSE, respondent’s alleged failure to inform them of their right to object to the parent member’s participation in the CSE meeting by telephone, and the CSE’s alleged failure to respond to two written requests for more information about their child’s proposed placement. It is well settled that the State Review Officer will not render a decision when an issue has not been raised at a hearing, and there is no evidentiary basis in the record on appeal to resolve the issue (Application of a Child with a Disability, Appeal No. 00-019; Application of a Child with a Disability, Appeal No. 97-58; Application of a Child with a Disability, Appeal No. 93-36). Therefore, I must decline to consider petitioners’ procedural objections.
An issue that petitioners did raise at the hearing concerns the preparation of their daughter’s IEP goals and objectives. They assert that the IEP was prepared by teachers before the CSE meeting, and that the goals were not discussed with them at the meeting. The dates on some IEP forms were filled out by some teachers before the first scheduled CSE meeting (Exhibit 3). However, this does not suggest to me that the child’s IEP goals were developed improperly. A student’s IEP must be developed, reviewed and revised at CSE meetings to which the student’s parents have been invited (34 CFR 300.343[a]; 8 NYCRR 200.4[d] and 200.5[c]). At the hearing, a school psychologist and an educational evaluator testified that they had prepared certain IEP goals and objectives, but they were somewhat uncertain about when they had actually drafted them (Transcript pp. 33, 74). It appears that at least some of the child’s proposed IEP goals and objectives may have been drafted by school personnel prior to the CSE meeting. There is, however, nothing wrong with that practice, provided that parents are advised that the goals and objectives are only suggested goals and objectives (Application of a Child with a Handicapping Condition, Appeal No. 90-13). The record is unclear about the extent to which the proposed goals and objectives were discussed at the CSE meeting. The student’s mother could not recall at the hearing whether the goals and objectives had been discussed (Transcript p. 51). The student’s father testified that he didn’t recall all of the goals being written, but he and his wife had been presented with goals at the meeting (Transcript p. 141). Upon the record before me, I find that there is no merit to petitioners’ contention about the IEP.
Petitioners challenge the hearing officer's finding that the CSE recommendation was an appropriate program for their child. A board of education may be required to pay for educational services obtained for a child by the child's parents, if the services offered by the board of education were inappropriate or inadequate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (School Committee of the Town of Burlington v. Dept. of Ed. of Massachusetts, 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 the parents' claim for tuition reimbursement (Florence County School Dist. Four v Carter, 510 U.S. 7 ).
A board of education bears the burden of establishing the appropriateness of the program which its CSE recommended (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). In order to meet its burden, a board of education must demonstrate that the recommended program is reasonably calculated to allow the child to receive educational benefits (Board of Educ. of the Hendrick Hudson Central School Dist. v. Rowley, 458 U.S. 176 ), and that the recommended program is the least restrictive environment for the child (34 CFR 300.550[b]; 8 NYCRR 200.6[a]).
An appropriate program begins with an IEP which accurately reflects the results of the child's evaluations to identify the child's needs, provides for the use of appropriate special education services to address the child's special educational needs, and establishes annual goals and short-term instructional objectives which are related to the child's educational deficits (Application of a Child with a Disability, Appeal No. 93-12; Application of a Child with a Disability, Appeal No. 93-9). Petitioners have not specifically challenged the IEP’s description of their child’s needs. In any event, I find that the IEP accurately reflects the results of the child’s evaluations. Except as noted above, they do not challenge the IEP’s goals and objectives, which appear to be directly related to the child’s special education needs (Transcript pp. 67-70).
Petitioners argue that the proposed placement at Humanities High School was inappropriate because not all of the special education teachers at that school may have been certified to teach special education. A representative of the Humanities High School testified at the hearing that he did not believe that "all of our special ed. teachers [are] certified special ed." (Transcript p. 98). Special education instruction must be provided by appropriately certified personnel (8 NYCRR 200.6[b]). It is respondent’s obligation to demonstrate that the child would have been taught by appropriately certified teachers, since the issue was raised at the hearing. While it is by no means clear that petitioners' child would have been instructed by an uncertified special education teacher, I must note that respondent’s witness was a teacher and dean of students at the Humanities High School. As an administrator, he is presumed to have some knowledge of the certification status of the teachers in the special education program. Respondent has not clarified its representative’s testimony in its answer to the petition. Under the circumstances, I am compelled to find that respondent has not met its burden of proving that it had offered to provide an appropriate educational program to petitioners’ daughter.
Petitioners bear the burden of proof with regard to the appropriateness of the services provided by Winston Prep 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 parents 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 ; 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).
This student’s academic achievement is below expectation because she has difficulty processing information and expressing her thoughts correctly. She also has an attention deficit, and requires refocusing at times. The parties are in agreement that the student would benefit from specialized instruction using a modified curriculum in small classes on a full time basis (Exhibit 2). Having considered the testimony by the Headmaster of Winston Prep and by the student’s focus teacher at that school, I find that the school provided the kind of specialized instruction the student required (Transcript pp. 121-125). The focus teacher described the student’s academic progress at Winston Prep during the 1999-2000 school year (Transcript pp. 126-128). The student’s written progress reports (Exhibit A) support the teacher’s testimony. I find that petitioners have met their burden of proof.
The third criterion for an award of tuition reimbursement is that equitable considerations support petitioners’ claim for an award of tuition reimbursement. I have considered the fact that petitioners did not attend a placement meeting on the day of the CSE annual review, which could have afforded them an opportunity to visit the recommended placement before classes had ended for the year. However, I am not persuaded that this should bar them from recovering their expenses for their daughter’s tuition.
THE APPEAL IS SUSTAINED.
IT IS ORDERED that the hearing officer’s decision is hereby annulled; and,
IT IS FURTHER ORDERED that respondent shall reimburse petitioners for their expenditure for the child’s tuition at the Winston Preparatory School during the 1999-2000 school year, upon petitioners’ submission of proof of payment for such expenditures.