Application of the BOARD OF EDUCATION OF THE CARMEL 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
Raymond G. Kuntz, P.C., attorney for petitioner, Leah L. Murphy, Esq., of counsel
Westchester/Putnam Legal Services, attorney for respondents, Jaqueline A. Ruppert, Esq., of counsel
Petitioner, the Board of Education of the Carmel Central School District, appeals from an impartial hearing officer’s decision granting respondents tuition reimbursement for the unilateral placement of their son in Camp Herrlich for the summer of 2000. Camp Herrlich provides a summer program that is not approved by the New York State Education Department to provide education to children with disabilities. The appeal must be dismissed.
Respondents’ son was 12 years old and classified as autistic when the impartial hearing began in November 2000. He was diagnosed with pervasive developmental disorder (PDD) at the age of two, and was enrolled in a preschool program prior to entering kindergarten in 1993. The student had initially been classified as multiply disabled by petitioner’s Committee on Special Education (CSE), but his classification was changed to autistic upon entering the second grade. His classification is not in dispute in this proceeding.
For the second grade during the 1996-97 school year, petitioner’s CSE recommended that respondents’ son receive consultant teacher services, speech/language therapy, occupational therapy, physical therapy, and an aide (Exhibits SD-17 and SD-18). The minutes of the CSE’s May 21, 1997 meeting indicated that respondents’ son "will attend summer camp with related services as a 12 month student" (Exhibit SD-19). Respondents enrolled their son in Camp Hampton for the summer of 1997. Arrangements were made with the CSE chairperson at the time to have petitioner reimburse the parents for the summer camp (Transcript p. 510 and Exhibit P-F). Petitioner also provided a teaching assistant (TA) to work with the student at the camp and provided a TA to work on his individualized education program (IEP) goals in respondents’ home to avoid substantial regression in his skills.
For the third grade during the 1997-98 school year, petitioner’s CSE again recommended consultant teacher services, speech/language therapy, occupational therapy, physical therapy, and an aide in a 12-month program (Exhibit SD-19). In the minutes of its annual review of the student on June 10, 1998, the CSE indicated that his "summer program will be at Camp Herrlich" with occupational therapy and speech/language therapy as well as a TA (Exhibit SD-23). Respondents enrolled their son in Camp Herrlich for the summer of 1998. Respondents again made arrangements with petitioner’s CSE chairperson to have petitioner reimburse them for the summer camp (Exhibit P-G). In addition to paying the camp tuition, petitioner provided a TA to work with the student at the camp. Respondents requested that petitioner not assign a TA to work with the student in their home during the summer, so that he could have a more normal summer. However, the student showed signs of regression upon his return to school in the fall (Transcript p. 517).
For the fourth grade during the 1998-99 school year the CSE recommended that respondents’ son receive consultant teacher services, speech/language therapy, occupational therapy, physical therapy and counseling. In addition, the CSE recommended two hours a month of consultation for home and school coordination (Exhibit SD 23).
In March 1999, respondents’ son was evaluated by a physical therapist at the Board of Cooperative Educational Services (BOCES) of Putnam/Northern Westchester Counties. The therapist noted that despite low muscle tone, the student was able to walk on even and uneven terrain and around obstacles, and could run and participate in basketball, gymnastics and floor hockey. The therapist opined that the student could access his educational program and did not require physical therapy (Exhibit SD-38).
In an April 1999 occupational therapy evaluation, the evaluator noted that respondents’ son was distractible, especially to auditory and visual stimuli, and needed repetition to complete writing and prewriting tasks. He could write his first and last name with some prompts. The evaluator indicated that respondents’ son had low muscle tone which caused him to become easily fatigued while performing gross motor and fine motor activities. She recommended that he receive occupational therapy during the 1999-2000 school year (Exhibit SD-42).
The student’s consultant teacher reported that the student had achieved standard (and percentile) scores of 58 (0.3) in broad reading, 0 (0.1) in broad math, 0 (0.1) in broad written language and 66 (1) in broad knowledge on the Woodcock Johnson Psychoeducational Battery - Revised. She noted that he was primarily a visual learner and was most successful when learning objectives were task analyzed and taught in a sequential fashion. The teacher opined that the student should have opportunities for ample practice and reinforcement so that his IEP objectives could be generalized and applied in many settings. She recommended that he be included with age appropriate and socially appropriate, positive peer role models because he was socially immature, emulated his peers and strove to be like them (Exhibit SD-40).
The CSE developed the student’s IEP for the 1999-2000 school year at a meeting on June 21, 1999. It recommended that he repeat the fourth grade at the local elementary school because petitioner did not have a program in place at its middle school for him to attend fifth grade there. Respondents agreed to the recommendation (Transcript pp. 502-503). The student was to receive ten hours a week of a consultant teacher in a special location, six hours a week of programmatic support in the home for generalization of his activities of daily living skills (ADL), and two hours a month of consultation for home and school coordination. In addition, the CSE recommended speech/language therapy, occupational therapy and counseling. A one-to-one aide was to be assigned to the student, and a transition plan was to be developed to prepare him for the middle school (Exhibit SD-28).
In the minutes of its June 21, 1999 meeting, the CSE indicated that the student’s summer program should include six hours of TA services at home, together with occupational therapy and speech/language therapy twice per week (Exhibit SD-28). Respondents’ son attended Camp Herrlich at petitioner’s expense during the summer of 1999. In addition to paying the camp tuition, petitioner provided a TA to work on the student’s IEP goals at the camp. He also received six hours of TA services a week at his home along with occupational and speech/language therapy (Transcript pp. 505-506 and 524).
During the 1999-2000 school year, respondents’ son visited a special education teacher’s classroom at the middle school throughout the school year. He also attended the middle school twice a week for chorus, band and gym (Transcript p. 503). His consultant teacher noted that the student expressed a desire to be with his mainstream class whenever possible, but also expressed anxiety about his transition. At times he would cry or want to call his mother. The consultant teacher reported that respondents’ son had made significant progress during the 1999-2000 school year. She noted that although his coping skills could be excellent, the current challenge of transitioning to the middle school underscored the need to maintain a level of consistency and familiarity for him until the transition occurred in September 2000. She opined that it would be in the student’s best interest to continue to participate in his familiar summer camp experience. She also recommended continuation of a bus monitor and a TA at the middle school (Exhibit SD-50).
The student’s counselor also reported that respondents’ son had made significant progress during the 1999-2000 school year, but had manifested a wide range of feelings and emotions about the transition to the middle school (Exhibit SD-48). His occupational therapist recommended the continuation of occupational therapy for the 2000-01 school year to address deficits in the student’s sensory system resulting in decreased attention span, poor balance and coordination, low muscle tone, decreased safety awareness, decreased body awareness, decreased motor planning abilities, and delays in both gross and fine motor skills (Exhibit SD-47)
On May 12, 2000, petitioner’s CSE convened to develop an IEP for the 2000-01 school year. It recommended that the student enter the sixth grade at petitioner’s middle school. The CSE and respondents agreed that the student should be placed in the sixth grade, notwithstanding the fact that he had remained in fourth grade during the 1999-2000 school year, so he could be with his classmates (Transcript p. 68). The student was to receive 7.5 hours of consultant teacher services per week in a special location and 30 minutes of speech/language therapy five days a week, 30 minutes of occupational therapy three times per week, and 30 minutes of counseling twice per week. As in the past, a full time TA was to be assigned to the student. On the student’s IEP, the CSE noted that emphasis was to be placed on his participation with regular students as much as possible (Exhibit SD-26). The CSE discussed respondents’ request that their son attend Camp Herrlich with a TA at petitioner’s expense and that a TA work with him at home during the summer. However, that discussion was tabled and no summer program was recommended at that time (Transcript p. 606).
The CSE reconvened on June 15, 2000 to discuss a summer program for the student. Just prior to the meeting, the student’s mother provided the CSE chairperson with a list of school districts that reportedly sent students to summer camp (Transcript pp. 539-540). The CSE deferred making a recommendation with respect to summer camp to enable the chairperson to contact other school districts to determine how they were able to recommend such programs for their students (Transcript p. 549). It did recommend continuation of the student’s occupational and speech/language therapy during the summer. I note that the CSE did not include the required parent member (Exhibit SD-27).
Another CSE meeting was held on June 19, 2000, at which the CSE chairperson indicated that Camp Herrlich would not be recommended because it was not a state approved program. Instead, the CSE chairperson indicated that there were three types of programs available to the student for the summer of 2000. First, the CSE could provide a special education itinerary teacher (SEIT) to work with the student at a summer camp or at respondents’ house for six hours a week. The SEIT would be provided in addition to the speech/language therapy and occupational therapy that the CSE had previously recommended. The student’s mother did not accept that option because she believed that it was not supportive enough. The student’s consultant teacher also agreed that the SEIT was not supportive enough. The CSE chairperson then discussed the option of providing only speech/language therapy, which the CSE concluded was not supportive enough. The last option discussed was an 8:1+2 special class at petitioner’s local middle school. The student’s mother was concerned that there would not be any interaction with nondisabled peers in the proposed class (Transcript pp. 557-559). In addition, she testified that she was concerned that her son would mimic other students’ negative behaviors that she had observed on prior occasions, including self-stimulation and making strange sounds with their voices (Transcript pp. 550-551). The CSE recommended that the student be placed in the 8:1+2 special class. Respondents rejected the placement as being too restrictive, and requested an impartial hearing. Respondents reportedly did not receive a copy of their son’s summer IEP until some time after September 11, 2000 (Exhibit P-B).
The student attended Camp Herrlich at respondents’ expense. Petitioner had recognized that the impartial hearing would probably not begin until after the summer had concluded and agreed to provide a TA to work with respondents’ son at camp (Transcript p. 6). In addition, it provided another TA to work with the student in his home, and it provided occupational and speech/language therapy. The Board of Education did not reimburse respondents for the cost of the summer camp. Instead, it decided to wait for the hearing officer to determine whether respondents were entitled to reimbursement (Transcript pp. 13-14).
The impartial hearing began on November 30, 2000, and concluded on February 26, 2001. In a decision dated April 15, 2001, the hearing officer held that petitioner had not met its burden of proof with respect to the appropriateness of the recommended summer program. He found that the 8:1+2 class recommended by the CSE would not address the student’s social and emotional needs. He also noted that the IEP generated at the June 19, 2000 CSE meeting was invalid because a parent member was not present at the CSE meeting. The hearing officer granted respondents tuition reimbursement for the summer of 2000.
Petitioner argues that the hearing officer erred in finding that a parent member was not present at the June 19, 2000 meeting, while admitting that the student’s regular education teacher was not present at this meeting. However, it argues that the failure of a regular education teacher to be present did not deny respondents’ son the opportunity to succeed in petitioner’s program. Petitioner also contends that it offered the student an appropriate summer program.
Respondents argue that the IEP generated at the June 19, 2000 meeting was invalid because the CSE at that meeting did not include the student’s regular education teacher. Respondents also assert that Camp Herrlich was an appropriate placement for their son because it provided opportunities to generalize new language and social skills and allow him to meet his summer goals and objectives.
I will first address petitioner’s claims that the hearing officer erred in finding that it did not prove the appropriateness of its recommended program. 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 petitioner cannot meet its burden of proof with respect to this student’s IEP because the CSE that prepared the IEP did not have each of its required members. While the hearing officer found that the CSE did not have each of its required members, he held that it was because the parent member was not present. I find that the hearing officer erred with respect to the parent member. Testimony from the CSE chairperson indicates that the parent member was present on June 19, 2000 (Transcript p. 340 and Exhibit SD-27). However, a close review of the record reveals that the student’s regular education teacher was not present at this CSE meeting. Although the meeting minutes refer to an individual as the student’s regular education teacher, that individual testified that she had never worked for petitioner as a regular education teacher, but had been employed by petitioner as a special education teacher (Exhibit SD-27 and Transcript p. 904). The regular education teacher of a student who is or may be participating in the regular education environment must be a member of the student’s CSE (34 CFR § 300.344[a]; 8 NYCRR 200.3[a][ii]). According to the student’s consultant teacher, respondents’ son was mainstreamed for certain periods of the day. Therefore, a regular education teacher was required to be present, and the IEP must be invalidated (Application of a Child with a Disability, Appeal No. 00-075).
A board of education may be required to pay for educational services obtained for a student by his 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 (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, petitioner cannot demonstrate the appropriateness of its recommended program. Therefore, I find that respondents have prevailed with respect to the first criterion for an award for tuition reimbursement.
Respondents bear the burden of proof regarding the appropriateness of the services that they obtained for their son at Camp Herrlich for the summer of 2000 (Application of a Child with a Disability, Appeal No. 95-57; Application of the Board of Educ., Appeal No. 94-34; Application of a Child with a Disability, Appeal No. 94-29). In order to meet that burden, the parents must show that the private school offered an educational program that 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 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 note that petitioner’s CSE had determined that the student was eligible to receive an educational program on a 12-month basis pursuant to 8 NYCRR 200.6 (j). Respondents’ son is autistic, a condition that affects not only his ability to acquire academic skills, but also his ability to interact with his peers (8 NYCRR 200.1[zz]). His speech/language therapist indicated that the student needed to improve his pragmatic language skills, especially with peers. One of the student’s IEP objectives was to improve his ability to participate in reciprocal conversations. Although the student had a generally successful year during the 1999-2000 school year, his consultant teacher reported that the student manifested some emotional regression related to his impending move to the middle school in the 2000-01 school year. The consultant teacher also reported that the student needed to maintain a level of consistency and familiarity until the transition to the middle school occurred in September 2000, and recommended that he continue to participate in his familiar summer camp experience.
The evidence demonstrates that with the assistance of a TA the student worked on various skills at Camp Herrlich that he had made progress on during the prior school year. Testimony from the student’s TA at camp reveals that they worked on decision-making skills such as determining which activities he should do when he had free periods, and following the camp schedule (Transcript pp. 780-781). She also indicated that his social skills were improving. She encouraged and assisted him in making eye contact, engaging in conversations and doing activities with his peers (Transcript pp. 786, 801). Those skills were worked on during the previous school year, and the TA was trying to assist him in generalizing these skills and applying them in different situations. There is also an indication that the student worked on fine and gross motor skills while at camp. He worked on arts and crafts, went swimming, and participated in survival type games (Transcript pp. 791-792, 800). The record reveals that the student was generally able to play cooperatively with his peers. Given this student’s need for socialization within a familiar setting, I find that respondents have met their burden of proof with respect to the appropriateness of Camp Herrlich.
In order for respondents to be awarded tuition reimbursement for the placement of their son in Camp Herrlich equitable considerations must support their claim. There is no indication that student’s parents failed to cooperate with the CSE in developing the student’s 2000-01 IEP. Therefore, I find that equitable considerations support respondents’ claim that they are entitled to tuition reimbursement for the cost of their son’s tuition at Camp Herrlich for the summer of 2000.
THE APPEAL IS DISMISSED.