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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 City School District of the City of New York


Neal Howard Rosenberg, Esq., attorney for petitioner

Hon. Michael A. Cardozo, Corporation Counsel, attorney for respondent, Blanche Greenfield, Esq., of counsel


        Petitioner appeals from an impartial hearing officer’s decision which found that respondent had offered to provide an appropriate educational program to his daughter for the 2000-01 school year and denied petitioner’s request for reimbursement for the cost of the student’s tuition at the Stephen Gaynor School (Gaynor) during that school year. The appeal must be dismissed.

        At the time of the impartial hearing, petitioner’s daughter was 12 years old, and was enrolled in the equivalent of sixth grade at Gaynor, which has not been approved by the New York State Education Department to provide instruction to children with disabilities. Petitioner and his former wife adopted the student at birth. The student lives with petitioner’s former wife. The student initially attended Calhoun, a mainstream private school, from kindergarten through the third grade (Transcript p. 107).

        When the student was in second grade, her teacher suggested to the student’s mother that the student be evaluated. After having her daughter privately evaluated, the student’s mother was told that her daughter had an attention deficit disorder (ADD), as well as language based learning problems, and that she should be educated in a small group setting (Transcript p. 109). She was enrolled by her parents at Gaynor for the fourth grade during the 1998-99 school year, and has remained at Gaynor since that time. In 1998, the student began taking Ritalin for ADD (Transcript p. 111).

        The student was initially classified as learning disabled by respondent’s Committee on Special Education (CSE) in March 1998. Her classification is not in dispute. In a psychological evaluation in November 1999, the student achieved a verbal IQ score of 81, a performance IQ score of 108, and a full scale IQ score of 93. The examining psychologist noted that the 27-point discrepancy in the student’s verbal and performance IQ scores was significant, and that the student had difficulty retrieving factual information from her long-term memory, remaining focused, and using her social judgment skills. Her perceptual motor skills were adequately developed. Projective materials and an interview suggested that the student was well adjusted, but somewhat immature (Exhibit 5).

        On the Kaufman Test of Educational Achievement that was administered to her in November 1999, the student achieved standard scores of 97 (mid-fourth grade) for reading decoding, 112 (mid-seventh grade) for reading comprehension, 88 (beginning fourth grade) for math computation, 87 (mid-third grade) for math applications, and 93 (mid-fourth grade) for spelling. Despite some weakness in the mechanics of writing, the student wrote a well developed sequential story for a writing sample. Respondent’s educational evaluator noted that the student displayed some fidgetiness. She reported that other testing indicated that the student should not have undue difficulty learning phonics (Exhibit 4). Although Gaynor offers ungraded classes, the student was chronologically in the fifth grade when evaluated.

        In February 2000, the student was evaluated by a speech/language therapist, who reported that the student’s rate of speaking, fluency and articulation were within normal limits. The therapist further reported that the student’s auditory processing skills ranged from above average to mildly deficient. She indicated that the student had difficulty organizing, integrating and remembering auditory stimuli, and performed better when the information was concrete and/or when contextual clues were provided. The student received standard scores of 96 for receptive language and 90 for expressive language on the Clinical Evaluation of Language Fundamentals-3. The therapist noted that the student had difficulty organizing, sequencing, and expressing her thoughts. She recommended that the student receive 30 minutes of speech/language therapy twice per week (Exhibit 7).

        At its annual review of the student on April 5, 2000, respondent’s CSE recommended that she be enrolled in a self-contained modified instruction services-I (MIS-I) class during the 2000-01 school year. It further recommended that she receive 30 minutes of counseling twice a week in a maximum group size of three, and 30 minutes of speech/language therapy twice a week in a maximum group size of three. The individualized education program (IEP) that the CSE prepared for the student contained various testing modifications, and it indicated that the student would participate with non-disabled peers in lunch, field trips, and assemblies (Exhibit 10). The student’s mother attended the CSE meeting. However, she declined to meet with the placement officer to discuss her daughter’s placement, and she signed a waiver to that effect (Transcript at p. 12; Exhibit 8). A final notice of recommendation offering a placement in respondent’s Wagner Middle School in Manhattan (Wagner) was sent to the parent on June 2, 2000 (Exhibit 11).

        Petitioner disputed the adequacy of the program offered, and requested an impartial hearing. The impartial hearing was held on April 24, June 11 and August 8, 2001. On August 29, 2001, the hearing officer rendered her decision finding that the Board of Education had met its burden of proving that it had offered to provide an appropriate educational program to the student for the 2000-01 school year. She found that the proposed educational program was similar in nature to the program the student was receiving at Gaynor, with the primary difference being the size of the public and private schools. While noting the mother’s concern that her daughter might not do well in a large public school, the hearing officer concluded that it would be mere speculation to conclude from the evidence presented that the student would not benefit educationally in the proposed public school setting. Accordingly, she denied the parent’s request for an award of tuition reimbursement for the 2000-01 school year.

        Petitioner challenges the hearing officer’s findings. He contends that his daughter’s educational and emotional needs are more extensive than the CSE appears to have recognized, and that the student’s IEP was not specific with respect to those needs. He asserts that the IEP was deficient because it did not include any annual goal relating to his child’s organization and study skills, and because it did not have expected dates of completion for the student’s short-term objectives. Petitioner also asserts that his daughter would not have been suitably grouped for instructional purposes in the recommended MIS-I class at Wagner.

        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 [1983]). To meet its burden, a board of education must show that its recommended program is reasonably calculated to confer educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176 [1982]). The recommended program must also be provided in the least restrictive environment (34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]). An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the child’s needs, establishes annual goals and short-term instructional objectives that are related to the child’s educational deficits, and provides for the use of appropriate special education services to address the child’s special education needs (Application of a Child with a Disability, Appeal No. 93-12; Application of a Child with a Disability, Appeal No. 93-9).

        Having examined the student’s IEP to ascertain whether it accurately reflects the student’s evaluations and adequately describes her special education needs, I find that it does both. The IEP includes not only standardized test scores, but also a written description of the kinds of academic tasks that are difficult for her to perform. For example, the IEP indicates that the student has difficulty regrouping during math calculations. It also indicates the techniques that would be most effective to use with her, such as the use of visuals and manipulatives with oral instruction, having questions and directions paraphrased or broken down, and using semantic maps, outlines and graphic organizers.

        Petitioner does not challenge his daughter’s IEP annual goals, except for the fact that there was no goal relating specifically to improving the student’s organizational and study skills. In any event, I have reviewed the IEP annual goals and find that they are directly related to the student’s identified special education needs. There are three reading goals, one with four supporting short-term objectives and two with three. Three writing and language arts goals each have with four supporting short-term objectives. There are two math goals, one with four short-term objectives and one with five. Although one can infer from the student’s IEP that she has organizational difficulties, the IEP does not have a specific annual goal specifically related to her organizational skills. I agree with petitioner that the student’s IEP should have included such a goal. However, I cannot find that the absence of such a goal from an otherwise satisfactory IEP affords an adequate basis for invalidating the entire IEP, and I note that several objectives refer to use of organizational strategies for learning, such as highlighting key words. I do not find persuasive petitioner’s argument that the IEP is flawed because it lacks completion dates for the student’s short-term objectives. Although the IEP for this student does not state specific dates of completion for the short-term objectives, there is no requirement of state or federal law that requires respondent to do so.

        Having determined the student’s IEP was appropriate, except as indicated above, I now turn to petitioner’s claim that the recommended MIS-I class would have been inappropriate for his daughter. Petitioner asserts that his daughter would have been overwhelmed by the number of students in the MIS-I class and by the size of respondent’s Wagner Middle School. The MIS-I program for sixth graders at Wagner is departmentalized. The teacher, who would have been the student’s homeroom teacher, as well as her science, reading and language arts teacher, testified that there were 11 students in the class in September 2000. The class profile entered into evidence also indicates there were 11 students (Exhibit 12). The student’s IEP indicated that the child to adult ratio would not exceed 15:1.

        At the hearing, the homeroom teacher testified that the class was divided into five reading groups, but that instruction in science and language arts was presented to the whole class (Transcript p. 72). The teacher who would have been the student’s math teacher testified that she divided her students by ability into three groups (Transcript p. 103). The student’s teacher at Gaynor during the 2000-01 school year testified that the child: adult ratio was 7:2 for reading and 6:2 for math (Transcript p. 154). The Gaynor teacher expressed concern that the student might have regressed if she had attended a school as large as Wagner, and had concerns about the student being placed in a class with a 15:1 child to adult ratio (Transcript p. 158). When questioned about the size of the MIS-I class, the student’s speech therapist at Gaynor indicated that it would not be ideal, but she did not testify that it would be inappropriate (Transcript pp. 134-35). I must agree with the hearing officer’s determination that speculation about the student’s adjustment to the proposed MIS-I placement does not afford an adequate basis for finding it to be inappropriate.

        Petitioner also asserts that the instructional range for reading of the students in the proposed MIS-I class exceeded three years (Exhibit 12). While petitioner appears to be correct, I note that 8 NYCRR 200.6(g)(7) does not prohibit a grade range of more than three years. I have considered petitioner’s other contentions, which I find to be without merit.

        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 Sch. Comm. v. Dep’t of Educ., 471 U.S. 359 [1985]). Since I have determined, as did the hearing officer, that respondent has met its burden of proving that it had offered to provide an appropriate educational program to petitioner’s daughter for the 2000-01 school year, I must find that petitioner is not entitled to an award of tuition reimbursement.


Topical Index

Annual Goals
Educational PlacementSpecial Class
Implementation/Assigned SchoolGroupingFunctional
Parent Appeal