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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


Hon. Michael A. Cardozo, Corporation Counsel, attorney for respondent, Aimee Fitzpatrick, Esq., of counsel


        Petitioner appeals from an impartial hearing officer's decision denying his request to be reimbursed for the cost of his daughter's tuition at the Clarke School for the Deaf in Massachusetts (Clarke) for the 2002-03 school year. The appeal must be sustained.

        Petitioner's daughter was almost nine years old at the time of the hearing. The child has been classified as hard of hearing by respondent's Committee on Special Education (CSE). She has a bilateral sensorineural hearing loss, wears binaural hearing aids, uses an FM system at Clarke, and communicates orally rather than by signing (Exhibit 6). There is no dispute about the child's classification.

        Previously, the child attended the J.H.S. 47 Integrated Preschool Program and then entered a modified instructional service IV class (MIS IV) at P.S. 3 when she reached school age. The record indicates that, as the result of an impartial hearing, the child attended a residential placement at Clarke, which specializes in teaching children with hearing disabilities, for the 2001-02 school year. At a meeting on May 2, 2002, the CSE recommended that the child attend a 12:1+1 special class using an auditory/oral program, have use of an auditory amplification system, and receive individual speech and language therapy for 30-minute sessions five times per week (Exhibits 1, 3). The site offered to the child was P.S. 138 in Manhattan, which is a specialized school located within a general education building (Exhibit 1; Transcript p. 17). The auditory/oral program that the CSE recommended was not in existence at the time of the May CSE meeting and the July 8, 2002 hearing (Transcript pp. 16, 96).

        By a letter dated June 14, 2002, petitioner requested an impartial hearing to review the CSE's recommendation (Exhibit IHO-1), and the hearing was held on July 8, 2002. In a decision dated July 25, 2002, the impartial hearing officer found respondent's placement to be appropriate. Petitioner continued to enroll his daughter at Clarke for the 2002-03 school year.

        Petitioner requests that the hearing officer's decision be annulled and that his daughter continue in her placement at Clarke. He argues that the program recommended by the CSE was untested and not yet in existence even at the time of the hearing, making it impossible for the parents to view the program, and he maintains that his daughter should not be taken out of a program in which she has made progress. Respondent asserts that it has a new program that appropriately addresses the child's needs using the same auditory/oral approach used at Clarke.

        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 (Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359 [1985]). The parent's failure to select a program 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 [1993]). The board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (M.S. v. Bd. of Educ., 231 F.3d 96, 102 [2d Cir. 2000], cert. denied, 532 U.S. 942 [2001]; Walczak v. Bd. of Educ., 142 F.3d 119, 122 [2d Cir. 1998]; Application of a Child with a Disability, Appeal No. 02-018).

        To meet its burden of showing that it has offered to a provide a free appropriate public education (FAPE) to a student, a board of education must show (a) that it complied with the procedural requirements set forth in the Individuals with Disabilities Education Act (IDEA), and (b) that the individualized education program (IEP) that its CSE developed for the student through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]).

        Upon the record before me, I find that respondent did not present sufficient evidence to show that the recommended program would have met the specific needs of the child (Application of a Child with a Disability, Appeal No. 97-67). As noted above, the program recommended for petitioner's daughter was not yet in existence at the time it was recommended or even as of the date of the hearing. Respondent's speech supervisor and coordinator of the auditory/oral program (coordinator) testified that the program was going to be in a general education building where the classroom would have acoustic modifications (Transcript pp. 16-17). It doesn't appear from the record that respondent had a classroom ready for the child as of the date of the hearing on July 8, 2002. Although the IEP developed for the child recognized her need for an "auditory amplification FM" device, speech-language therapy and indicated that petitioner's daughter required "instruction in an auditory/oral environment and methodology," there was nothing in the child's IEP that addressed specifically how and to what extent the classroom environment would be modified to meet her needs (Exhibit 3). The coordinator testified about some of the acoustic modifications that might be made to a classroom but was not specific about those which had been or would be made to meet the child's needs (Transcript p. 16).

        Creating an auditory/oral program requires specific environmental modifications, curricular input, and current electronic equipment. Respondent's recommended program is unique because it requires very specific physical environmental modifications (Transcript p. 18). In part, this would include acoustic modifications to the classroom environment (Transcript p. 16). However, there was no indication from the testimony given at the hearing that these specific modifications would have been available to the child by September 2002. Significantly, although respondent indicated at the hearing that the school had been selected for the classroom, respondent did not indicate that the actual classroom exists or that physical modifications had begun. It is also significant to note that in respondent's verified answer, filed with the Office of State Review on October 10, 2002, well after the start of the 2002-03 school year, respondent did not provide additional documentary evidence that the recommended program was in existence (8 NYCRR 279.5). Documentary evidence not presented at a hearing may be considered in an appeal from a hearing officer's decision if such evidence was unavailable at the time of the hearing or when such evidence is necessary to enable me to render a decision (Application of the Bd. of Educ. of the Hyde Park Cent. Sch. Dist., Appeal No. 02-024).

        Students with disabilities must be suitably grouped for instructional purposes with children having similar needs and abilities in the following areas: educational achievement and learning characteristics, social development, physical development, and management needs (8 NYCRR 200.6[a][3] and 200.1[ww][3][i]). Typically, a board of education demonstrates similarity of grouping for instructional purposes by offering a class profile listing the needs of the children in those areas or by providing testimony about the needs of the other children (Application of a Child with a Disability, Appeal No. 97-67). Here, the hearing was held over the summer, and the class roster had not been finalized as of the date of the hearing (Transcript p. 25). That fact, however, does not relieve respondent of its obligation to show that petitioner's daughter would have been grouped with other students with similar needs and abilities. At the hearing, the coordinator briefly described the hearing, speech, and academic abilities of two other students who might attend the class (Transcript pp. 21, 24-26). However, respondent's witness was unable to testify about the needs and abilities of other children in the class because those children had not been identified as of the date of the hearing (Transcript p. 26). In such situations, a board of education has an obligation to explain the criteria it will use to place children in the class (Application of a Child with a Disability, Appeal No. 00-014; Application of a Child with a Disability, Appeal No. 97-67). Although the coordinator testified that all prospective students in the class would be evaluated by an audiologist, a speech pathologist, and others (Transcript p. 22), she did not indicate the criteria by which they would be placed in the class in each of the four areas specified in 8 NYCRR 200.1(ww)(3)(i). On the record before me, I find that respondent failed to establish that petitioner's daughter would be placed with other children with similar needs and abilities.

        I recognize that the auditory/oral program that was recommended for the child was a new program being developed by respondent. Nevertheless, respondent had the responsibility to demonstrate that the proposed program and placement would have afforded the child an opportunity to achieve her IEP goals and objectives. On the basis of the record presented, I find that respondent failed to do so (Application of a Child with a Disability, Appeal No. 97-67).

        Having determined that respondent has not met its burden of proving that it had offered to provide a FAPE to the child during the 2002-03 school year, I must now consider whether petitioner has met his burden of proving that the services provided to the child by Clarke during that school year were appropriate (Application of a Child with a Disability, Appeal No. 02-027; Application of the Bd. of Educ. of the Hyde Park Cent. Sch. Dist., Appeal No. 02-024). In order to meet that burden, petitioner must show that Clarke offered an educational program that met his daughter's educational needs (Burlington, 471 U.S. at 370; Application of the Bd. of Educ. of the Springville-Griffith Inst. Cent. Sch. Dist., Appeal No. 02-036). The private school need not employ certified special education teachers, nor have its own IEP for the child (Application of the Bd. of Educ. of the Springville-Griffith Inst. Cent. Sch. Dist., Appeal No. 02-036; Application of a Child with a Disability, Appeal No. 02-027).

        Clarke's director testified that the Clarke School for the Deaf is an oral school that specializes in educating children who are hard of hearing. Every classroom has acoustically treated walls and an FM system with a sound field system (Transcript pp. 45-46). Clarke also provides on-site audiological services whenever needed. Clarke does not group students by grade but places them with other children according to their academic and language levels (Transcript p. 61). At the time of the hearing, the ages of the child's classmates ranged from about seven to nine years of age (Transcript p. 46; see 8 NYCRR 200.6[g][5]). The child's two roommates were also close in age to the child (Transcript p. 59). At Clarke, petitioner's daughter has improved from speaking in fragmented sentences to speaking in sentences that contain appropriate detail when she receives minimal cueing (Transcript p. 67; Exhibits B, F). It thus appears that Clarke's auditory/oral approach is meeting the child's individual needs.

        The child's recommended program must also be provided in the least restrictive environment (LRE) (34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]). While parents are not held as strictly to the standard of placement in the LRE as school districts are, the restrictiveness of the parental placement may be considered in determining whether the parents are entitled to an award of tuition reimbursement (Rafferty v. Cranston Pub. Sch. Comm., 315 F.3d 21 [1st Cir. 2002]; M.S., 231 F.3d 96. However, the LRE requirement must be balanced against the requirement that each student receive an appropriate education (Briggs v. Bd. of Educ., 882 F.2d 688 [2d Cir. 1989]; Application of the Bd. of Educ. of the Bay Shore Union Free Sch. Dist., Appeal No. 00-080). Because Clarke is a private school serving only hard of hearing students who are educated in an oral environment, there is not the same opportunity for mainstreaming as a placement in one of respondent's public schools. Moreover, because Clarke is located in Massachusetts, petitioner's daughter attends as a residential student. I note, however, that the child's IEP provides for her to attend special classes in all areas and to participate with the regular education population only in nonacademic activities (Exhibit 3), and her placement is described as being a special class in a specialized school (Exhibit 1). Additionally, at Clarke the child is able to socialize with children other than her classmates while she is outside of the classroom in this residential program (Transcript pp. 47-51). Balancing LRE requirements against the need to provide an appropriate placement and considering the limited amount of time the child was to spend with the regular school population in the recommended public school placement, I conclude that Clarke is not unduly restrictive and that petitioner has met his burden of demonstrating the appropriateness of the placement at Clarke for the 2002-03 school year.

        The final criterion for an award of tuition reimbursement is that the parent's claim be supported by equitable considerations. The record reveals that the parents cooperated with respondent's CSE in preparing the child's IEP. Respondent asserts that equitable considerations do not support petitioner's claim for tuition reimbursement because the tuition cost is "grossly excessive." While the level of reimbursement is a relevant factor in fashioning equitable relief, I do not find the amount of tuition at Clarke to be unreasonable or inappropriate (Carter, 510 U.S. at 15). In the absence of any other equitable factor, I find that the parent's claim for tuition reimbursement is supported by equitable considerations.


IT IS ORDERED that the decision of the hearing officer is annulled; and

IT IS FURTHER ORDERED that, upon the submission of proof by petitioner to respondent of the amount of tuition paid by petitioner to Clarke for the child's tuition from September 2002 through June 2003, respondent shall reimburse petitioner for such expenditure.