Application of a CHILD WITH A DISABILITY, by her parents, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the Rye City School District
Regina Skyer and Associates, attorneys for petitioners, Deusdedi Merced, Esq., of counsel
Shaw & Perelson, LLP, attorneys for respondent, Lisa S. Rusk, Esq., of counsel
Petitioners appeal from an impartial hearing officer's (IHO) determination that they were not entitled to reimbursement for the cost of sending their child to the Eagle Hill School (Eagle Hill) during the 2001-2002 academic year. The IHO found that the individual education program (IEP) developed by the Rye City School District (district) was reasonably calculated to provide the student with a "free appropriate public education (FAPE)" in the least restrictive environment, that the evidence presented by petitioners did not establish that the student received an educational benefit from attendance at Eagle Hill, and that the equities did not favor petitioners’ claim for reimbursement. The appeal must be dismissed.
The student is a 13-year-old girl who is classified speech and language impaired. Shortly before her third birthday, the student was diagnosed with a severe phonological disorder and language delays, for which she received private language therapy. As of her 3rd birthday, the Committee on Preschool Special Education (CPSE) recommended speech and language services at home. The student also continued to receive private therapy services. Except for preschool and the single year of attendance at Eagle Hill, the student always attended the district's public schools.
Towards the end of the 1999-2001 academic year, when the student was in the 5th grade, a clinical psychologist, who was familiar with the student and who testified at the hearing on behalf of the parents, conferred with the school psychologist. After several meetings with the student the clinical psychologist concluded that the student had been coping well and had made very good use of the counseling that was provided by the district. She advised against private psychotherapy.
In the 6th grade, the student reportedly began to demonstrate dramatic changes in her behavior. She complained about the difficulty of her homework, became abusive toward her sister and engaged in frequent episodes of crying. The parents conveyed their concerns about their daughter to the district and requested that she be placed in a self-contained class. A meeting of the Committee on Special Education (CSE) was convened to consider the parents' concerns. Some modifications were made to the IEP, but the parents’ request to have their daughter placed in a self-contained class was denied. The CSE determined that placement in the self-contained class would not be in the best interest of the student.
On March 12, 2002, petitioners signed a contract to have the student attend Eagle Hill. On March 13, 2002, the CSE met, with both parents of the student present, and proposed an IEP for the 2002-2003 school year. Petitioners did not object to the recommended IEP at that meeting.
In July 2002, the student experienced a manic and psychotic episode, was diagnosed with a bipolar disorder and was placed on several psychotropic medications. The medication was beneficial in helping the student to modify her behavior. By letter from their attorneys dated August 16, 2002, the parents gave the district notice of their rejection of the IEP proposed at the March 13, 2002 CSE meeting. The parents further advised the district that they were unilaterally electing to place the student at Eagle Hill and would be seeking reimbursement from the district. The letter did not articulate the parents' objections to the IEP with any specificity. Instead the letter advanced the conclusory claim that the student was denied a FAPE. In response to the parents' notice, on August 28, 2002, the district convened a meeting of the CSE to address the parents’ objections to the IEP.
In the afternoon of August 27, 2002, prior to the meeting of the CSE on August 28, 2002, the parents faxed numerous documents and reports including a letter to the CSE from the student’s treating psychiatrist that was dated August 12, 2002 (Transcript p. 200). The letter informed the CSE, for the first time, of the student’s "manic and psychotic" episode in July 2002.
The CSE modified the March 2002 IEP to include one new goal with four short-term objectives and eleven new short-term objectives under previously identified goals. Under the goal titled social/behavioral/emotional, with a sub-heading of Demonstrate an improvement in social skills, the CSE included one new short-term objective. Under the sub-heading of Demonstrate an improvement in socially acceptable behaviors in the school environment the CSE included three new short-term objectives. A new goal related to study skills was also included, with four corresponding short-term objectives.
The parents rejected the IEP proposed at the August 2002 CSE meeting and in September 2002, the student began attending Eagle Hill. The director of special education for the district testified that the parents did not specify their objections to the proposed IEP. She testified that if they had, the district might have been able to "develop some goals and objectives that may have satisfied or helped us to satisfy some of their concerns" (Transcript pp. 208).
A board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (M.S. ex rel. S.S. v. Bd. of Educ. of the City Sch. Dist. of the City of Yonkers, 231 F.3d 96, 102 [2d Cir. 2000]; Application of a Child with a Disability, Appeal No. 02-028; 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 its recommended program is reasonably calculated to confer educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 ). The recommended program must also be provided in the least restrictive environment (LRE) (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 the Bd. of Educ. of the Monticello Cent. Sch. Dist., Appeal No. 02-008; Application of a Child with a Disability, Appeal No. 93-12; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).
The evidence demonstrates that the student was performing well, given the limits imposed by her speech and language impairment. In fact, the student was on the honor roll (Transcript p. 73). When the CSE received evidence of the student's psychiatric condition, modifications were made to her IEP to facilitate the student’s adjustment to the social stresses and the academic challenges she faced. Whereas the IEP proposed in March contained five short-term objectives under the goal titled social/emotional/behavioral, the IEP proposed at the August 13, 2002 CSE meeting contained nine short-term goals. Three new short-term objectives, including participation in The Learning Center, were proposed at the August 2002 CSE meeting under the heading of speech/language. Four new study skills goals were recommended.
The modifications to the IEP were made in response to information provided by the parents that indicated that the child had experienced a "manic and psychotic" episode one month earlier in July of 2002. Each of the enumerated and measurable goals was specifically tailored to address the concerns of the parents (e.g. acting out, few friends) and the identified academic deficiencies that the student exhibited in the least restrictive environment.
I find that the district has met its burden of demonstrating that the proposed placement for the 2002-2003 school year was reasonably calculated to confer an educational benefit on the student in the least restrictive environment. Therefore, the issues regarding the appropriateness of the Eagle Hill placement and equitable considerations need not be addressed.
THE APPEAL IS DISMISSED.