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


Jaspan Schlesinger Hoffman, LLP, attorneys for petitioner, Carol A. Melnick, Esq., of counsel

Skyer and Most, Esqs., attorneys for respondents, Deusdedi Merced, Esq., of counsel


        Petitioner, the Board of Education of the City School District of the City of Glen Cove, appeals from an impartial hearing officer’s decision which ordered it to reimburse respondents for the cost of their son’s tuition at the Churchill School in New York City for the 2000-01 school year. The appeal must be dismissed.

        Respondents’ son was 14 years old at the start of the 2000-01 school year, and was entering the ninth grade at the Churchill School. The Churchill School has been approved by the New York State Education Department to provide instruction to children with disabilities up through the eighth grade. Its high school program had not been approved by the Department.

        The student has been classified by petitioner’s Committee on Special Education (CSE) as having a learning disability since the second grade. There is no dispute about the appropriateness of his classification, although the parties disagree about the emotional effect that the student’s disability was having upon him. In his most recent evaluation performed by a private psychologist on March 2, 2000, respondents’ son achieved a verbal IQ score of 108, a performance IQ score of 116, and a full scale IQ score of 113. The psychologist noted that the student’s perceptual-organizational skills were highly developed and that his verbal comprehension was in the high average range. However, his visual motor speed and processing speed were areas of significant weakness. The psychologist noted that the student worked at a very slow pace, and he predicted that the student would have great difficulty completing tests, classwork, and homework assignments in a time-effective manner (Exhibit D-26).

        Respondents’ son reportedly began experiencing academic difficulties in the first grade. A private psychologist who evaluated the student in the spring of 1993 attributed the student’s poor reading and spelling skills to auditory processing and language difficulties. He described respondents’ son as an overly sensitive child who worried excessively and was often unhappy, and recommended psychotherapy for him (Exhibit D-2). Following his classification as learning disabled by the CSE, the student began to receive resource room services five times per week while in the second grade during the 1993-94 school year. The student also began to be privately tutored, and was still being tutored at the time of the hearing during the 2000-01 school year.

        He continued to receive resource room services five times per week while in the third and fourth grades in the petitioner’s grade school. His fourth grade resource room teacher reported that his extremely slow processing interfered with his ability to read at the same pace as his peers. She indicated that he continued to need assistance with reading decoding and spelling, as well as his organizational skills, and that he should assume responsibility for his classwork (Exhibit D-3). The student also received occupational therapy in the third through sixth grades.

        A school psychologist who evaluated the student in March 1996 reported that the student demonstrated statistically significant weaknesses on measures of visual-motor coordination and visual scanning speed, which could reflect problems in processing abstract symbolic information. He also noted that respondents’ son was very distractible. The student achieved composite standard scores of 101 for reading and 120 for language on the Wechsler Individual Achievement Test (WIAT). While the student’s scores for math on the WIAT were generally grade equivalent, he evidenced some difficulty with calculations of numbers and in solving problems presented orally. The psychologist opined that the student’s math difficulties might be due to inattention, rather than a lack of skills. Respondents’ son displayed weak writing skills on the WIAT, earning a composite standard score of 82. The school psychologist recommended that the student continue to receive resource room services, five times per week (Exhibit D-4).

        The student continued to receive resource room services while enrolled in the fifth, sixth, and seventh grades in petitioner’s schools. His individualized education program (IEP) for the sixth grade and his IEP for the seventh grade indicated that classwork and homework should be modified to compensate for the student’s extremely slow rate of reading decoding. The CSE amended the student’s IEP early in the seventh grade to include the use of a word processor for written assignments (Exhibit D-13). In the middle of the 1998-99 school year, the student’s seventh grade mathematics, English, Spanish and science teachers reported problems with the completion of homework, and his mathematics and science teachers reported that he had difficulty staying on task (Exhibit D-17). The student’s seventh grade final report card indicated that he had failed Spanish and English (Exhibit D-25).

        A modified triennial psychological evaluation was performed in June 1999 at the end of seventh grade (Exhibit 24). Respondents’ son achieved composite standard scores of 101 for reading, 101 for mathematics, and 89 for language on the WIAT. His greatest strength was in reading comprehension, while his most pronounced area of weakness was in spelling. His overall academic performance was reported to be in the low average range. Projective testing revealed the student was experiencing feelings of inadequacy and insecurity. The psychologist recommended continuing with resource room services five times per week, and suggested various interventions related to the student’s weakness in spelling. I note that notwithstanding the student’s history of difficulty with the mechanics of writing and written expression, there is no evidence that the psychologist assessed his writing skills.

        For the eighth grade during the 1999-2000 school year, the CSE recommended that respondents’ son be enrolled in regular education classes and receive 180 minutes of resource room services per week. The student’s IEP included various program modifications such as preferential seating, exemption from the foreign language requirement, use of a word processor and books on tape, and altered class and homework assignments to compensate for his slow rate of reading decoding (Exhibit D-19). Respondents’ son began eighth grade in a "Level II" class at the petitioner’s middle school, in which instruction was provided at a slower pace and to a smaller group than in a "Level I" class (Transcript pp. 527-528). At respondents’ request, the student was moved to a Level I class early in the school year because he reportedly missed his friends. During the second quarter of the school year, the student failed three of his four academic subjects. However, he received passing grades in each of those subjects during the final two quarters of the year, and earned final grades of 67 in English, 78 in math, 71 in science, and 74 in social studies (Exhibit D-49).

        In February 2000, respondents applied to the Churchill School. As noted above, they had their son privately evaluated by a psychologist in March 2000. The psychologist described the student as a well-adjusted adolescent who possessed above average intelligence, with somewhat stronger nonverbal than verbal skills. He indicated that the student had a history of dyslexia and significant difficulties in visual motor (processing speed) skills that have significantly impacted upon his academic progress. He recommended that the student be placed in a small class setting with students who were performing at similar academic levels, and that he should have access to counseling if requested (Exhibit D-26).

        In anticipation of the next school year, the CSE met with the student’s mother on March 29, 2000. The minutes of that meeting reflect the mother’s dissatisfaction with her son’s program during the eighth grade year, including her claim that her son’s IEP program modifications had not been implemented on a consistent basis (Exhibit 27). The initial IEP that the CSE prepared provided for the student’s placement in ninth grade regular education classes, with an increase in resource room services to 360 minutes per week. The IEP indicated that class and homework assignments should be modified to compensate for the student’s extremely slow reading decoding, and that he should use a word processor for written work. It also provided for the use of books on tape, the use of a scribe and a reader, modified grading, and provision of class notes to the student (Exhibit D-28).

        The initial IEP was sent to the student’s parents who were asked to provide comments or to request a second meeting of the CSE. The record indicates that the parents enrolled their son in the Churchill School on April 25, 2000 (Exhibit P-AAA). Petitioner’s school psychologist asked respondents to provide documentation of their claim that their son had an attention deficit hyperactivity disorder (ADHD), which the student’s physician subsequently provided, noting that the student was receiving stimulant medication (Exhibit D-34). In a letter dated June 20, 2000, the physician opined that the student should be placed in a facility such as the Churchill School to meet his academic and emotional needs (Exhibit D-37).

        The CSE reconvened on June 21, 2000. The special education programs available in petitioner’s district were discussed, and the student’s resource room and science teachers discussed his performance. The parents’ attorney noted that they had reserved a place for their son in the Churchill School, but that they still wished to hear what the CSE would propose before deciding upon a private school placement. The CSE adhered to its earlier recommendation of regular education classes in petitioner’s high school with two periods per day (360 minutes per week) of resource room services. It did agree to the parents’ request to delete the use of a scribe from the student’s IEP for the 2000-01 school year (Exhibit D-40). The resulting IEP included seven annual goals with regard to the student’s reading comprehension, writing, math, organizational, and attending skills, and his vocational interests (Exhibit D-38). The new IEP was transmitted to the student’s parents on or about July 6, 2000.

        By letter dated July 25, 2000, respondents’ attorney informed the CSE chairperson that the student would be placed by his parents in the Churchill School for the 2000-01 school year, and requested an impartial hearing on their behalf (Exhibit D-43). A hearing was held on November 2, December 14, December 19, December 21, 2000 and January 16, January 22, and March 14, 2001. In a decision dated June 14, 2001 the hearing officer found that the student’s IEP for the 2000-01 school year was procedurally and substantively flawed, and she concluded that the Board of Education had failed to meet its burden of proving that it had offered to provide an appropriate educational program to the student. She further found that respondents had met their burden of proving that the Churchill School was appropriate to meet their son’s educational needs, and that equitable considerations support the respondents’ claim for an award of tuition reimbursement. Accordingly, she ordered the Board of Education to reimburse the parents for the cost of their son’s tuition at the Churchill School for the 2000-01 school year.

        Petitioner challenges the hearing officer’s findings with regard to the alleged inappropriateness of the student’s IEP. It asserts, and I agree, that the hearing officer erred in concluding that the IEP was deficient because the CSE had not conducted an observation of the student in his classroom before preparing the IEP. This was not an initial evaluation, and no observation was required (8 NYCRR 200.4[b][1][iv]). Petitioner also disputes the hearing officer’s finding that its CSE failed to conduct a social history. It has submitted copies of a social history performed in 1993 as part of the student’s initial evaluation as well as a March 3, 1999 update. Neither document was entered into evidence at the hearing. While petitioner’s failure to offer them at the hearing is troubling, I will accept them as part of the record in this appeal in order to have a complete record. Having done so, I must disagree with the hearing officer’s finding that no social history had been performed.

        The hearing officer also found that the student’s IEP was deficient because the CSE had failed to perform a functional behavior assessment and the IEP did not include a behavioral intervention plan. The Regulations of the Commissioner of Education provide that an evaluation must include a functional behavioral assessment for a student "..whose behavior impedes his or her learning or that of others, as necessary to ascertain the physical, mental, behavioral and emotional factors which contribute to the suspected disabilities" (8 NYCRR 200.4[b][1][v]). Although this requirement is set forth in the definition of an initial evaluation, I note that there is no evidence that such an assessment has ever been performed. In any event, a CSE must accurately identify a student’s needs as the first step in preparing an appropriate IEP for each school year.

        There is no suggestion that respondents’ son was disruptive in the classroom, but there is substantial evidence that he had difficulty remaining focused, which affected his ability to benefit from the instruction being provided to him. I am also concerned by the comment of one of his teachers at the March 29, 2000 CSE meeting. The student’s English teacher indicated that the student sat near to her in class, yet talked to his friends for the whole class period, and "he lets me know every day that he just doesn’t care" (Exhibit D-27). A substantial portion of the CSE meeting was apparently devoted to discussing the student’s failure to complete assignments, despite the fact that his assignments were reportedly modified so that he was not required to do as much work as other students in his classes. The record reveals that the student’s failure to complete assignments was a continuing problem throughout the 1999-2000 school year.

        Although the student achieved a passing grade in each of his academic subjects for the eighth grade, there is a significant discrepancy between his grades for the first three quarters of the year, and his grades for the remainder of the year. Even after the CSE was provided with a diagnosis of ADHD by the student’s physician, it failed to include that information on the student’s IEP and it described his management needs as being minimal (Exhibit D-38). In view of the student’s diagnosed condition and the abundant evidence of the variability of his performance in school, I find that the CSE should have conducted a functional behavior analysis to more accurately assess the effect of his behavioral condition upon his performance in school.

        The hearing officer found that the student’s IEP goals were deficient because they could not be achieved within a one-year period and lacked appropriate objective criteria and evaluation procedures. She noted that Board of Education witnesses had acknowledged that the student had not achieved all of his 1999-2000 goals. I agree with petitioner that a student’s failure to achieve each of his IEP goals is not conclusive proof of the inappropriateness of either the student’s current program or his proposed program. However, it is essential that the CSE have an accurate understanding of a student’s present levels of performance in order to create appropriate new goals. I am not persuaded by the record that petitioner’s CSE had that understanding.

        The student’s 1999-2000 IEP goals and objectives were not written with sufficient precision, so that even if each goal and objective had been achieved, it would still not be possible to ascertain his current levels of performance when his IEP for the 2000-01 school year was prepared. The student’s resource room teacher testified that the student had worked on various goals and objectives in his 1999-2000 IEP, but few of them had been mastered (Transcript pp. 611-613). The 2000-01 IEP reported the student’s scores on the Woodcock-McGrew-Werder test administered to him in February 2000. I note that there is no other evidence of that test in the record. I further note the student’s grade equivalent score of 10.3 for total reading on that test is well above the 7.6 grade equivalent for total reading that the student had achieved on the WIAT in June 1999. It is also above the student’s actual grade level during the 2000-01 school year. Given this student’s long history of reading difficulty, which continued during the 1999-2000 school year, I must question the use of that score for an IEP description of the student’s current level of performance in reading.

        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 Sch. Comm. v. Dep’t of Educ., 471 U.S. 359 [1985]). Having found that the CSE failed to adequately assess the student’s needs and report his current levels of performance, I must concur with the hearing officer’s determination that the Board of Education failed to meet its burden of proving that it had offered to provide an appropriate educational program to respondents’ son during the 2000-01 school year.

        The burden of proof shifts to respondents to demonstrate that the services that they obtained for their son at the Churchill School were appropriate (Application of a Child with a Disability, Appeal No. 95-57; Application of the Bd. of Educ., Appeal No. 94-34; Application of a Child with a Disability, Appeal No. 94-29). The parents’ failure to select a school that has been approved by the State Education Department to provide services to their child is not itself a bar to reimbursement (Florence County School Dist. Four v. Carter, 510 U.S. 7 [1993]). 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, 471 U.S. at 370; Application of a Child with a Disability, Appeal No. 94-29).

        The Churchill School is a private school located in Manhattan that specializes in the education of children with learning disabilities. While the school has had a kindergarten through eighth grade program for a number of years, the 2000-01 school year was the first year that a ninth grade class was enrolled, with a plan to have ninth through twelfth grade classes enrolled by the 2003-04 school year (Exhibit EE).

        Respondents’ son was enrolled in Regents level math, science, global studies and English classes, with either a 12:1+1 or 11:1+1 student : teacher ratio (Exhibit Z). In addition to these academic subjects, the student had gym for three hours per week, plus music once per week and Art twice per week (Transcript p. 1187). While there was some dispute as to the makeup of the student’s classmates at the Churchill School, in terms of their intellectual functioning (Transcript p. 736), it is clear from the record that at least some of the student’s peers at the school were of high average to superior IQ.

        The student’s English teacher at the Churchill School testified at the hearing about the school’s educational program. She testified that a multisensory, sequential, structured approach was used throughout the school day. Her testimony indicated that she had a good understanding of the student’s educational deficits, describing in detail his difficulty in decoding, and his need to be refocused (Transcript pp. 1189-1194). She also described the techniques which she used to refocus the student, and the structured approach that was used to assure that homework is completed. The English teacher testified that the student’s writing had improved since entering the Churchill School (Transcript p. 1197).

        Petitioner contends that the Churchill School was inappropriate for respondents’ son because his placement in that school is inconsistent with the requirement that children with disabilities be placed in the least restrictive environment (34 C.F.R. § 550[b]; 8 NYCRR 200.6[a][1]). While that requirement does apply to unilateral parental placements (M.S. v. Board. of Educ., 231 F.3d 96, 105 [2d Cir. 2000]), it must be balanced against the requirement that each student receive an appropriate education (Briggs v. Board of Educ., 882 F.2d 688,692 [2d Cir. 1989]). Respondents’ son has deficits in his basic academic skills, most particularly in his written expression that will affect his ability to perform satisfactorily in a regular education environment. I am aware that he has been in that environment while enrolled in petitioner’s schools, but I am not persuaded that each of his special education needs can be met by supplemental instruction in a resource room. Instead, it appears that he requires primary special education instruction for writing and reading, at least with respect to the 2000-01 school year. Accordingly, I find that the student’s placement at the Churchill School is consistent with the least restrictive environment requirement, and that respondents have met their burden of proof with regard to the appropriateness of the services provided to their son by the Churchill School.

        The third and final criterion for tuition reimbursement is whether equitable considerations support the parent’s claim for reimbursement. Petitioner contends that the parents’ claim for tuition reimbursement is not supported by equitable considerations because they failed to provide timely notice to petitioner of their intention to withdraw their son from its schools and place him in a private school. The record reveals that respondents signed the private school’s enrollment agreement in April 2000, after the March CSE had been held, but before the June meeting took place. The minutes of the June CSE meeting indicate that the CSE was well aware that the parents would probably place their son in the Churchill School, but were waiting until they received a written copy of the CSE’s recommendations for their son’s program. Within a reasonable period of time after receiving a written copy of the CSE’s recommendations, respondents, through their attorney, notified the CSE of their intention to dispute their son’s IEP and to place him in the private school. I find that petitioner’s contention is without merit.


Topical Index

Annual Goals
CSE ProcessSufficiency of Evaluative Info
District Appeal
Equitable Considerations10-day/CSE notice of placement
Special FactorsInterfering Behaviors (FBA/BIP)
Unilateral PlacementAdequacy of Instruction