Application of a CHILD WITH A DISABILITY, by his parent, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the Southampton Union Free School District
Neal H. Rosenberg, Esq., attorney for petitioner
Guercio & Guercio, Esqs., attorneys for respondent, Tammy R. Mays, Esq., of counsel
Petitioner appeals from an impartial hearing officer’s decision finding that respondent had offered to provide an appropriate educational placement to her son during the 1999-2000 and 2000-01 school years, and denying her request for an award of tuition reimbursement for those years. The appeal must be sustained in part.
At the outset, I will address two procedural issues. First, petitioner’s attorney points out that respondent’s answer was dated November 2, 2001, but was verified on October 24, 2001. While respondent’s attorney has not offered an explanation for the discrepancy, I am not persuaded that there is an adequate basis for rejecting the answer. The Board of Education asks that I accept 14 documents that were not part of the record before the hearing officer. The documents include evaluations of the student and related material from 1991, 1994, 1995 and 1999, as well as materials related to the student’s registration in respondent’s school district, correspondence among petitioner, respondent and/or the hearing officer regarding the submission of student-related information to respondent, and report card grades and narrative progress reports from the student’s private school during the 1999-2000 school year. Documentary evidence not presented at the hearing may be considered in an appeal from a hearing officer’s decision, if such evidence were unavailable at the time of the hearing or if the record would be incomplete without the evidence (Application of the Board of Educ., Appeal No. 00-042; Application of a Child with a Disability, Appeal No. 98-55). I find that the proffered documents will make the record complete, and in the interest of fairness I will exercise my discretion and accept the additional evidence (Application of a Child with a Handicapping Condition, Appeal No. 91-25).
Petitioner’s son was 15 years old and a ninth grade student at Rumsey Hall in Washington Depot, Connecticut at the commencement of the hearing. Rumsey Hall is a regular education school that has a supplemental language skills program for students with learning disabilities. It has not been approved by the New York State Education Department to instruct children with learning disabilities. The student attended various private schools from kindergarten through seventh grade. In September 1999, he transferred to respondent’s Southampton Intermediate School (SIS) for the eighth grade. The student left SIS on or about January 5, 2000, when petitioner unilaterally enrolled him in Rumsey Hall. He completed the eighth grade at Rumsey Hall and, was enrolled at that school for the ninth grade.
Petitioner’s son repeated kindergarten because of slow development. A learning disabilities specialist who evaluated the student in 1991 when he was in first grade reported that attention and visual perceptual difficulties, and problems processing and sequencing detailed information interfered with the student’s academic development. She opined that discrepancies in his reading scores suggested that he had mild dyslexia. When she re-evaluated him in 1994, the specialist concluded that the student had specific learning disabilities in the areas of language and reading comprehension, and that deficits in visual discrimination and visual and auditory memory affected his abilities in these areas. The evaluator also noted that the student became frustrated and withdrew from the learning process when confronted with challenging tasks. Finally, the evaluator concluded that the student’s problems might be related to an underlying attentional deficit hyperactivity disorder (ADHD), and recommended a neurological evaluation.
In the course of applying for admission to a private school in the spring of 1999, the student was evaluated by a psychologist who noted that he had significant deficits in his writing skills, and suggested that petitioner contact respondent for special education services. Following a discussion with respondent’s director of special education in July 1999, petitioner decided to enroll her son in an eighth grade inclusion class in SIS, pending the first meeting of respondent’s Committee on Special Education (CSE) in the 1999-2000 school year (Transcript Vol. III, p. 48-50). She formally referred her son to the CSE on or about September 15, 1999.
According to his social history, the student had reached most developmental milestones within expected norms. His ADHD had been diagnosed in 1995, and had been treated with medication since that time (Exhibit 1, p. 2). The student’s developmental/medical history form (Exhibit 1, p. 4), also completed on September 15, 1999, noted that the student was taking the ADHD medication Adderall, twice a day.
On cognitive testing performed in June and September 1999, the student achieved a verbal IQ score of 122, a performance IQ score of 87, and a full scale IQ score of 106. Respondent’s school psychologist noted that the 35-point difference between the student’s verbal and performance IQ scores was highly significant. She reported that the student’s performance on tests measuring psychomotor functioning, processing speed and visual discrimination was in the defective range. The student’s visual motor integration skills were age appropriate. Achievement testing revealed that the student’s ability to identify words and comprehend what he read was above grade level, while his math and spelling skills were at grade level. Respondent’s school psychologist reported that the student had significant difficulty in expressing his thoughts and ideas in spontaneous written format. She concluded the student’s deficits in psychomotor functioning and in processing speed interfered with his ability to express himself through written form at a level commensurate with his intellectual ability, and that this was evidence of a learning disability in written expression.
On September 15, 1999, petitioner and her husband met with the CSE. Neither the student’s regular education teacher nor any other regular education teacher attended the meeting (Transcript Vol. I, p. 97, Vol. III, p. 89). The CSE classified the student as learning disabled and recommended an inclusion program for him. The inclusion program consisted of an inclusion class and a resource period. Along with seven other classified students, the student was placed in regular education classes for each of his core academic subjects (Transcript Vol. II, pp. 5-7, 17, 48). The regular education classes had a total of between 20 and 23 students and two teachers. A regular education teacher was assigned to teach the academic subject area and a special education teacher worked with the classified students within the larger class (Transcript Vol. I, p. 29, Vol. II, pp. 49-50). Over the course of a day, the special education teacher and the group of classified students moved from one regular education academic class to another.
The student’s resource period occurred every other day. During this double period, the special education teacher provided the students with assistance and help as needed outside of the regular education classroom. The student was mainstreamed for physical education, art and music. His individualized education program (IEP) provided for the use of testing modifications including extended time for testing and a special testing location, as well as annual goals and short-term objectives in the areas of writing, listening, and study skills (Exhibit 3).
Petitioner met with respondent’s staff regarding the student’s IEP and program in November 1999 (Transcript Vol. III, pp. 70-72). She also had a number of telephone conversations with the inclusion teacher and correspondence with respondent’s director of special education regarding her son’s program. The student’s special education teacher advised petitioner that her son did not belong in the inclusion class because he was too bright for the class (Transcript Vol. II, p. 39). On or about December 19, 1999, petitioner advised the CSE chairperson that she was enrolling her son in Rumsey Hall effective January 5, 2000 (Exhibit G). By letter dated February 1, 2000, petitioner’s attorney advised respondent that petitioner would seek tuition reimbursement for her son’s attendance at Rumsey Hall, and requested an impartial hearing (Exhibit D).
On August 29, 2000, respondent’s CSE conducted its annual review to prepare the student’s IEP for the 2000-01 school year. No regular education teacher attended the meeting. Representatives of Rumsey Hall were invited to the CSE meeting. Although representatives of that school spoke by telephone to one or more CSE members before the meeting, they did not attend the meeting. The CSE recommended that the student be placed in respondent’s ninth grade inclusion program at the Southampton High School (Exhibit 4). By letter dated September 28, 2000, petitioner’s attorney informed the CSE chairperson that petitioner’s son would remain at Rumsey Hall for the 2000-01 school year, and that petitioner would seek tuition reimbursement. The attorney requested that an impartial hearing be scheduled (Exhibit F). Because the hearing for the previous school year was scheduled to commence on November 1, 2000, petitioner’s attorney requested that the hearings for the two academic years be consolidated.
The consolidated hearing commenced on November 1, 1999. It continued on December 20, 1999 and concluded on March 29, 2001. The hearing officer issued an initial decision on June 4, 2001 and a corrected decision on August 27, 2001. He determined that an inclusion placement was appropriate for the student for both school years, and that the unilateral removal of the student to the private residential school was inconsistent with the requirement that students with disabilities be educated in the least restrictive environment (LRE). He denied petitioner’s request for tuition reimbursement for the 1999-2000 and 2000-01 school years.
Petitioner appeals from the hearing officer’s decision on a number of grounds. Initially, I note that she asserts that the classification of other health impaired may have been more appropriate for her son than learning disabled because he has ADHD in addition to a learning disability. However, she did not raise the issue in her hearing requests or her opening statement at the hearing. Absent evidence that the issue was timely raised below, I will not consider it in this appeal (Application of a Child with a Disability, Appeal No. 00-019; Application of a Child with a Disability, Appeal No. 99-60).
A board of education may be required to pay for educational services obtained for a disabled 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 Sch. Comm. v. Dep’t of Educ., 471 U.S. 359 ). The failure of a parent to select a program known to be approved by the state in favor of an unapproved option is not itself a bar to reimbursement (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 ).
I will first consider the 1999-2000 school year. 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 ). To meet its burden, a board of education must show that the recommended program is reasonably calculated to confer educational benefits (Board of Educ. v. Rowley, 458 U.S. 176 ). The recommended program must also be provided in the least restrictive environment (34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a]).
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 program for the 1999-2000 school year because the CSE that prepared the student’s IEP did not include all of its required members.
None of the student’s regular education teachers were present at the September 15, 1999 CSE meeting, as required by the applicable federal regulations and state law (34 C.F.R. § 300.344[a]; N.Y. Education Law, Section 4402[b][a][ii]). The student was enrolled in regular education physical education, art and music classes and therefore one of his regular education teachers should have attended the CSE meeting (Application of the East Ramapo Central School District, Appeal No. 99-38). Respondent argues that the presence of its special education administrator or of the student’s special education teachers satisfied the district’s obligation to have one of the student’s regular education teachers present at the CSE meeting. The argument is not persuasive.
The applicable federal regulations and state law in effect at the time of the CSE meeting required that the regular teacher be a regular education teacher "of the child". There is no evidence that the special education administrator provided or was certified to provide any regular education instruction to the student. Nor did respondent provide evidence that the student’s special education inclusion teacher, who had never taught a regular education class, was certified to provide the student with regular education instruction (Transcript Vol. II, p. 4-5, 34-35). The relevant New York statute makes explicit provision for certain CSE members to serve in more than one capacity (See Section 4402[b] of the Education Law). It does not authorize a special education administrator or a student’s special education teacher to also serve as the student’s regular education teacher member of the CSE.
I have considered respondent’s argument that the absence of the regular education teacher from the CSE is a de minimus violation of law, which I find to be without merit (Application of a Child with a Disability, Appeal No. 00-092). In the absence of the required regular education teacher member, the CSE could not have recommended a valid IEP, and the IEP for the 2000-01 school year is therefore a nullity (Application of a Child with a Disability, Appeal No. 01-034; Application of the Board of Education of the Carmel Central School District, Appeal No. 01-015). Consequently I find that the Board of Education has not sustained its burden of proving the appropriateness of the program recommended by its CSE for 1999-2000. Having made this determination, it is not necessary that I address petitioner’s other procedural and/or substantive challenges to the IEP (Application of a Child with a Disability, Appeal No. 00-075).
The student’s parent bears the burden of proof with regard to the appropriateness of the services selected during the 1999-2000 school year (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, petitioner must show that Rumsey Hall offered an educational program that met her son’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).
Over the Board of Education’s objection, the headmaster of Rumsey Hall testified by telephone on behalf of the petitioner with respect to the appropriateness of that school’s educational program for the student. Respondent asks that the headmaster’s testimony be struck from the record on appeal because it was taken telephonically. Respondent’s request is denied. I am aware that federal and state regulations accord each party at a hearing the right to "confront" witnesses (34 C.F.R. § 300.509[a]; 8 NYCRR 200.5[i][ix]). However, there is nothing intrinsically unreliable about telephonic testimony. The record reveals that respondent’s attorney had a full opportunity to cross-examine this witness. I note that respondent has not pointed to any specific prejudice caused by the form of the headmaster’s testimony.
Rumsey Hall is a coeducational day and residential private school for children in kindergarten through ninth grade. Although it is a regular education school, approximately 20 percent of its students are enrolled in a supplemental language skills program for students with learning disabilities. Participation in this program carries an additional charge, and follows diagnostic testing and the development of a curriculum designed to meet the specific needs of the participant. The students in the supplemental language skills program are provided with 1:1 services by instructors certified in the Orton-Gillingham language training methodology for 40 minutes a day, five days a week. The language skills instructor also works with the student’s regular education teachers and provides those teachers with summaries of student progress and suggestions to improve the student’s work in regular education classes. All other classes at Rumsey Hall are limited to 12 students. The school also has daily "extra-help" sessions at the end of the class day and an evening study hall program. The latter program provides an opportunity for teachers to work with students, to assist them with their homework, to monitor their study habits, and to keep them organized.
Petitioner’s son attended Rumsey Hall’s regular education classes and participated in the language skills program while attending the school in the 1999-2000 school year. He also participated in the school’s evening study hall and extra help sessions. The school’s headmaster testified that the student had worked on organizing his thoughts, the content and structure of his writing, and putting his thoughts clearly on paper, while in the language skills program (Transcript Vol. V, pp. 15, 26). Petitioner’s son achieved satisfactory grades at Rumsey Hall during the 1999-2000 school year (October 30, 2001 Affidavit at Exhibit N). He was reported to have developed sufficient compensatory skills in the language skills program, and did not need to participate in the program during the 2000-01 school year (Transcript Vol. V, pp. 18-19, 16, 31). I find that the program offered by the Rumsey School to petitioner’s son during the 1999-2000 school year addressed the student’s special education needs.
The Board of Education contends that petitioner should not be awarded tuition reimbursement because petitioner cannot show that her son required a residential placement. The requirement that each child with a disability be placed in the LRE (20 U.S.C. § 1412[a]) does apply to unilateral parental placements (M.S. v. Board of Educ., 231 F.3d 96, 105 [2d Cir. 2000]). However, 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]). A residential placement is among the most restrictive of educational placements. It should not be selected unless it is required for a student to benefit from his educational program (Walzak v. Florida Union Free School District, 142 F.3d 119, 122 [2d Cir. 1998]; Mrs. B. v. Milford Board of Education, 103 F.3d 1114, 1121-22 [2d Cir. 1997]; Application of a Child with a Disability, Appeal No. 98-69; Application of a Child with a Disability, Appeal No. 98-2; Application of a Child with a Disability, Appeal No. 95-33).
I cannot conclude on the record before me that this student’s special education needs were so severe that he required a residential placement in order to benefit from his educational program. This would normally preclude reimbursement of petitioner’s expenditures for the residential portion of her son’s placement at Rumsey Hall during the 1999-2000 school year (Application of a Child with a Disability, Appeal No. 01-054). I note that the student’s residence is in Suffolk County on Long Island, while Rumsey Hall is located in the northwestern part of Connecticut. There is nothing to suggest that he could have attended the school as a day student. However, petitioner does not allege that she tried to find an appropriate day placement for her son and could not locate such a placement (Application of a Child with a Disability, Appeal No. 01-059; cf. Application of the Bd. of Educ., Appeal No. 99-94). Under the circumstances, I find that petitioner has met her burden of proof only with respect to the appropriateness of the day portion of Rumsey Hall’s program during the 1999-2000 school year.
The third and final Burlington criterion for an award of tuition reimbursement is that petitioner’s claim is supported by equitable considerations. I find that petitioner cooperated with the respondent. She contacted respondent’s special education department before enrolling her son in respondent’s schools. As directed, she formally referred the student to the CSE, and signed a consent form for the CSE to evaluate him. Petitioner and her husband attended the September 15, 1999 CSE meeting. She also met with, contacted or spoke with the student’s teachers and/or other respondent personnel regarding how the student was doing in school and her concerns about that.
Respondent argues that petitioner was unequivocally set on a private school, that she refused to seriously consider the student’s placement in the district, and that the hearing officer found that equitable considerations "did not tip in (her) favor". I first note that the hearing officer made no such finding. Although petitioner unsuccessfully sought to have her son admitted to Rumsey Hall in September 1999 and maintained some contact with the private school after her son was enrolled in respondent’s schools, neither action affords a basis for concluding the her claim for tuition reimbursement is not supported by equitable considerations. I find that equitable considerations support an award of non-residential tuition at Rumsey Hall to the student for the 1999-2000 school year.
I now turn to petitioner’s claim for an award of tuition reimbursement for the 2000-01 school year. At its annual review on August 29, 2000, the CSE did not include a regular education teacher member (Transcript Vol. II, p. 58, Vol. III, p.89; Exhibit 4, p. 15). Given the student’s attendance in regular education classes at Rumsey Hall during the 1999-2000 school year, as well as the CSE’s recommendation that he participate in an inclusion program and be mainstreamed for non-academic courses, I find that the CSE should have included a regular education teacher member. Consequently, the IEP recommended at that CSE meeting and subsequently approved by respondent for the 2000-01 school year was invalid and a nullity. I therefore find that respondent has not met its burden of proving that it had offered to provide an appropriate educational program to petitioner’s son for the 2000-01 school year.
With respect to the second Burlington criterion, I find that petitioner has failed to meet her burden of proof. As noted above, petitioner’s son attended regular education classes at Rumsey Hall during the 2000-01 school year. He did not participate in the school’s language skills program that year (Transcript Vol. V, p. 7). There is no evidence that his language skills instructor(s) from the previous year provided the student with any significant assistance that year. Indeed, the student was thought to have made so much progress in the language skills program during the 1999-2000 school year that he did not require that program during the 2000-01 school year. He participated in the school’s afternoon extra help sessions and, apparently, in its evening study hall program (Transcript Vol. V, pp. 7, 11-13). However, there is nothing in the record to indicate that the student received any special education instruction at Rumsey Hall during the 2000-01 school year. Consequently, there is no basis upon which I could find that the school met his special education needs during that school year (Application of the Bd. of Educ., Appeal No. 01-066; Application of the Bd. of Educ., Appeal No. 00-052). In view of this finding with respect to the second Burlington criterion, I do not reach the third criterion.
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that the hearing officer’s decision is hereby annulled; and
IT IS FURTHER ORDERED that respondent shall reimburse petitioner for the cost of non-residential tuition (including that for the language skills program) at Rumsey Hall for the portion of the 1999-2000 school year that the student attended the school, upon petitioner’s submission of proof of payment of such an amount.