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04-073

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

Appearances: 

Educational Advocacy Services, attorney for petitioner, Emil J. Sanchez, Esq., of counsel

Hon. Michael A. Cardozo, Corporation Counsel, attorney for respondent, Janice Casey Silverberg, of counsel

Decision

            Petitioner appeals from the decision of an impartial hearing officer which denied her request to be reimbursed for her daughter’s tuition costs at the Communities Acting to Heighten Awareness and Learning program for the 2003-04 school year. The appeal must be sustained.

            The impartial hearing officer found that the individualized education program (IEP) developed for petitioner’s daughter by respondent’s Committee on Special Education (CSE) for the 2003-04 school year appropriately addressed the student’s educational needs. Petitioner asserts that respondent failed to provide a free appropriate public education (FAPE) in the least restrictive environment (LRE) because the IEP inappropriately changed the student’s classification, failed to provide for mainstreaming opportunities and failed to address the student’s peanut allergy and toileting issues. Petitioner contends that the private school in which she placed her daughter was appropriate and that equitable considerations support her claim.

            At 2.5 years of age petitioner’s daughter was diagnosed with Pervasive Developmental Disorder (PDD) and placed in a preschool early intervention program (Parent Ex. B). The student’s IEP for the 2002-03 school year classified her as other health impaired (OHI) and recommended placement in a 12:1:1 special class with related services.  The record indicates that instead of accepting the recommended placement, petitioner unilaterally placed her daughter in kindergarten at the Hebrew Academy of Nassau County (HANC). HANC contracted with an organization known as Communities Acting to Heighten Awareness and Learning (CAHAL) to provide special education services for HANC students. Petitioner’s daughter participated in a CAHAL program at HANC, consisting of a 9:1:1 special class with related services of speech and language therapy four times per week, occupational therapy three times per week and counseling once per week (Parent Ex. B at p. 1).

           On June 23, 2003 respondent’s CSE met to develop an IEP for the student’s first grade (2003-04) school year. The resulting IEP changed the student’s classification from OHI to a student with a speech or language impairment (Dist. Ex. 1 at p. 1).  The IEP provided for placement in a 12:1:1 special class at P.S. 197 with related services of 1:1 counseling once per week; 2:1 counseling once per week; 1:1 speech and language therapy twice per week; 2:1 speech and language therapy once per week; and 1:1 occupational therapy three times per week (Dist. Ex. 1 at p. 9).1

           Petitioner declined to accept the IEP, pending an opportunity to observe the proposed classroom (Dist. Ex. 17). Petitioner did subsequently visit the P.S. 197 classroom and rejected the proposed placement. Petitioner enrolled her daughter for the 2003-04 school year at a private school, Hebrew Academy of Five Towns and Rockaway (HAFTAR) (Parent Ex. L). HAFTAR also contracted with CAHAL, and the student continued to participate in the CAHAL program at HAFTAR (Parent Ex. L).

           On March 25, 2004 petitioner requested an impartial hearing pursuant to the Individuals with Disabilities Education Act (IDEA), seeking tuition reimbursement for the CAHAL component of the student’s tuition for the 2003-04 school year. A hearing took place on June 24, 2004 and June 29, 2004, following which the impartial hearing officer issued his determination, denying tuition reimbursement. This appeal ensued.

            Petitioner commenced this appeal on September 20, 2004. Respondent transmitted to the Office of State Review, an incomplete record, parts of which were received on September 22, 2004. Missing from the record, however, was the entire transcript of the second day of the hearing, June 29, 2004. Despite repeated requests from the Office of State Review, respondent failed to supply the June 29 transcript until December 16, 2004, significantly delaying the issuance of this decision. The record before me is still incomplete. A relevant psychiatric report and an educational evaluation report are both missing key pages despite repeated requests for the complete exhibits having been made by the Office of State Review, the last having been made on as recently as January 31, 2005, with a subsequent reply from respondent asking petitioner to submit the exhibits, to no avail. 

           Federal and state regulations require each school district to maintain an accurate record of the proceedings before an impartial hearing officer (34 CFR § 300.509[a][4]; 8 NYCRR 200.5[i][3][iv]). It is respondent’s obligation to furnish the Office of State Review with a complete copy of the record (8 NYCRR 279.9). I find respondent’s failure to supply a complete record particularly troubling because respondent has previously been admonished for failing to comply with these regulations (Application of a Child with a Disability, Appeal No. 03-055).

           In a pleading captioned “reply” dated December 21, 2004 petitioner objected to respondent’s delays in furnishing a complete record, contending that respondent unfairly delayed the appeal process and caused petitioner to suffer prejudice as a result of such delay. Petitioner asks that I sustain the appeal on that basis alone. The failure to maintain an accurate and complete record may constitute a basis for annulling an impartial hearing officer’s determination (Application of a Child with a Disability, Appeal No. 03-055; Application of a Child with a Disability, Appeal No. 93-4), and given respondent’s repeated failures I have considered doing so in this matter. Annulling the impartial hearing officer’s decision for this reason, however, would not resolve the underlying issues regarding petitioner’s entitlement to tuition reimbursement. In the interests of finality and the prevention of further delay, I shall, therefore, address the merits of the petition. While I find that the record was sufficient for me to render a determination, I direct respondent to ensure that in the future that a complete copy of the record before the impartial hearing officer is provided to the Office of State Review in accordance with section 279.9 of the Commissioner’s regulations (Application of a Child with a Disability, Appeal No. 03-055; Application of the Bd. of Educ., Appeal No. 99-58; Application of a Child with a Handicapping Condition, Appeal No. 92-35).

          Tuition reimbursement is a remedy for the denial of a FAPE (20 U.S.C. § 1400[d][1][A]).  A FAPE includes special education and related services provided in conformity with an IEP as required by the IDEA (20 U.S.C. §§ 1400-1487; see § 1401[8]). A FAPE is tailored to the unique needs of a child with a disability by means of an IEP (Bd. of Educ. v. Rowley, 458 U.S. 176, 181 [1982]). By arguing that her daughter’s IEP inappropriately changed the student’s classification, failed to provide for mainstreaming opportunities and failed to address the student’s peanut allergy and toileting issues, petitioner asks that I find that the IEP was legally insufficient to provide her daughter with a FAPE.

          A board of education may be required to pay for educational services obtained for a student by his or her parent, only 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. of Mass, 471 U.S. 359 [1985]; Application of a Child with a Disability, Appeal No. 03-088). The school district bears the burden of demonstrating the appropriateness of the program recommended by its CSE (M.S. ex rel. S.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. 03-088; Application of a Child with a Disability, Appeal No. 02-028; Application of a Child Suspected of Having a Disability, Appeal No. 93-9), including the classification recommended by its CSE (Application of a Child with a Disability, Appeal No. 94-16; Application of a Child Suspected of Having a Disability, Appeal No. 94-8).       

          To meet its burden of showing that it had offered to a provide a FAPE to a student, the board of education must show that it complied with the procedural requirements set forth in the IDEA, and that the IEP developed by the CSE 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, 206,207 [1982]). The student's recommended program must also be provided in the LRE (34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).

           I note, initially, that the record before me affords no basis whatsoever for ascertaining which reports and evaluations the CSE actually considered in formulating the student’s IEP for the 2003-04 school year. The IEP itself does not provide this information, and the only witness who testified about the reports and evaluations was not present at the CSE meeting, did not participate in developing the IEP (Tr. p. 18) and, in fact, had never met petitioner’s daughter (Tr. pp. 13, 24).

           I turn first to the issue of classification. As indicated, the student was diagnosed at an early age with PDD. Respondent’s witness testified at the hearing that a “spectrum” of more specific disorders, including autism and Asperger’s disorder, falls under the general umbrella of PDD (Tr. p. 21; see Application of a Child with a Disability, Appeal No. 01-034). A psychiatric evaluation dated May 28, 2003 diagnoses the student’s primary condition as Asperger’s disorder, with accompanying symptoms of an attention deficit hyperactivity disorder (ADHD) (Parent Ex. B). Depending upon the circumstances, a child with Asperger’s disorder may appropriately be classified with any one of several conditions set forth in section 200.1(zz) of the Regulations of the Commissioner of Education, including but not limited to other health impairment (8 NYCRR 200.1[zz][10]; see Application of a Child with a Disability, Appeal No. 04-002; Application of a Child with a Disability, Appeal No. 04-021), speech or language impairment (8 NYCRR 200.1[zz][11]; see Application of a Child with a Disability, Appeal No. 01-034) or autism (8 NYCRR 200.1[zz][1]).

          The student’s 2002-03 IEP classified her as OHI, presumably because of the early PDD diagnosis. The student’s 2003-04 IEP, at issue in this matter, changed her classification from OHI to speech or language impaired (Dist. Ex. 1). Although theoretically such a change of classification could be appropriate, it is impossible from this record to determine why, for this student, the CSE changed the classification. Inexplicably, the 2003-04 IEP actually reduced the student’s related service of speech and language therapy from the level of such service recommended in the 2002-03 IEP. Such reduction appears inconsistent with the change of classification from OHI to speech or language impaired.

          This child’s ability to relate appropriately to others has been and continues to be a significant issue for her. Although the IEP provides for counseling, I find that the IEP does not adequately address the student’s socialization issues, nor other symptoms characteristic of Asperger’s disorder that adversely affect her educational performance. In light of the foregoing, I find that respondent has not met its burden of proof with respect to the student’s classification (see Application of a Child with a Disability, Appeal No. 01-034).

          An appropriate education for a student with a disability is one in which IEP goals are reasonably calculated to enable the child to receive meaningful educational benefits (Rowley, 458 U.S. at 192, supraWalczak, 142 F.3d 119, supra), and the recommended program is in the LRE for the child (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]; 8 NYCRR 200.1[cc]; Application of a Child with a Disability, Appeal No. 02-032). To the maximum extent appropriate, students with disabilities must be educated with nondisabled students (Application of the Bd. of Educ., Appeal No. 02-083).

          I find that the IEP also fails to provide educational services in the LRE. Although she has specific educational deficits, petitioner’s daughter presents with high average intellectual skills and functions either on grade level or above, in most academic areas. At CAHAL the student mainstreamed for reading, with an individual aide, and did well (Tr. pp. 66, 94-95). The 2003-04 IEP provides no opportunity for mainstreaming in any academic or special classes.

         Because respondent has failed to demonstrate the appropriateness of the student’s classification, and because it failed to offer an educational program in the LRE, respondent has failed to meet its burden of showing that it offered an appropriate placement to petitioner’s daughter for the 2003-04 school year. Accordingly, petitioner has satisfied the first criterion for obtaining an award of tuition reimbursement (see Application of the Bd. of Educ., Appeal No. 02-052).  In light of these findings I do not reach petitioner’s arguments regarding her daughter’s peanut allergy and toileting issues.

         A student's parent bears the burden of proof with regard to the appropriateness of the services selected (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). In order to meet that burden, the parent 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 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 [1993]), and the fact that a parent places a child in a sectarian school does not preclude an award of tuition reimbursement (Application of the Bd. of Educ., Appeal No. 01-102; Application of the Bd. of Educ., Appeal No. 94-14).

         The record is replete with evidence that the CAHAL program offered an educational program that met the student’s special educational needs. CAHAL has provided mainstreaming opportunities for the student, from which she has benefited (Tr. pp. 66, 94-95). She also has other opportunities to interact with the school’s general education students (Tr. p. 86).   Her academic growth and reading skills have improved (Tr. p. 91). There are three teachers in her CAHAL class and nine other children with similar academic needs (Tr. pp. 91, 98), including other children with Asperger’s disorder (Tr. p. 81). She has an aide for mainstreaming, without whom she would not be successful (Tr. p. 101).  Her writing has developed such that she can put two sentences together and write a summary of things she has read; she’s also gained fluency in reading (Tr. p. 102). CAHAL provides counseling, as well as occupational therapy and speech therapy, for petitioner’s daughter (Tr. p. 61). I find that the CAHAL program at HAFTR addressed the student’s special education needs and that petitioner has prevailed with respect to the second criterion for an award of tuition reimbursement.

         The third and final criterion for an award of tuition reimbursement is whether equitable considerations support the parent's claim (Application of the Bd. of Educ., Appeal No. 02-052). Respondent’s arguments on this point involve petitioner’s allegations regarding her daughter’s peanut allergy and toileting needs. I need not reach those allegations, in light of the foregoing conclusions, and, therefore, they are irrelevant to my consideration of the equities in this matter. There is no evidence in this record to deny petitioner’s claim on equitable grounds.

         Having found that petitioner has prevailed on all three criteria for an award of tuition reimbursement, I must sustain her appeal.

         The record establishes that 20 percent of the student’s program at CAHAL is devoted to religious activity (Tr. p. 149). In the petition herein, petitioner expressly states that any award of tuition should appropriately be reduced by 20 percent to reflect the purely religious component of her daughter’s CAHAL program. Having found petitioner entitled to tuition reimbursement, I accept the apportionment petitioner suggests, and order an award of 80 percent of the cost of the student’s placement at the HAFTR CAHAL program for the 2003-04 school year.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that the impartial hearing officer’s decision is hereby annulled; and

IT IS FURTHER ORDERED that respondent shall reimburse petitioner for 80 percent of her expenditures for the student’s placement at the CAHAL program at HAFTR during the 2003-04 school year, upon petitioner’s submission to respondent of proof of payment for such expenses.

1  Although the IEP indicates that occupational therapy would be 1:1, respondent’s notice to petitioner (Dist. Ex. 17) states that the occupational therapy ratio would be 3:1. The record before me provides no means for ascertaining which ratio the CSE actually recommended.

2  It would have been extremely informative to contrast this psychiatric evaluation with an earlier psychiatric report dated April 8, 2002. Regrettably, however, respondent omitted from the record all but the first page of the April 8, 2002 report (Parent Ex. E).

Topical Index

Equitable Considerations
IDEA EligibilityDisability Category/Classification
Least Restrictive Environment (LRE)
Parent Appeal
Preliminary MattersAdditional Evidence/Record Issues
ReliefReimbursement (Tuition, Private Services)
Unilateral PlacementProgress

1  Although the IEP indicates that occupational therapy would be 1:1, respondent’s notice to petitioner (Dist. Ex. 17) states that the occupational therapy ratio would be 3:1. The record before me provides no means for ascertaining which ratio the CSE actually recommended.

2  It would have been extremely informative to contrast this psychiatric evaluation with an earlier psychiatric report dated April 8, 2002. Regrettably, however, respondent omitted from the record all but the first page of the April 8, 2002 report (Parent Ex. E).