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Application of a CHILD WITH A DISABILITY, by his parents, 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


Law Offices of Deusdedi Merced, P.C., attorney for petitioners, Deusdedi Merced, Esq., of counsel

Hon. Michael A. Cardozo, Corporation Counsel, attorney for respondent, Kimberly Conway, Esq., of counsel


            Petitioners appeal from the decision of an impartial hearing officer which denied their requests for reimbursement and for prospective funding for private evaluations and sound therapy for their son.  The appeal must be dismissed.

           At the time of the hearing the child was seven years old and about to enter second grade (Parent Ex. A at p. 3).  The child has been classified as having a speech or language impairment (Parent Ex. A at p. 1; see 8 NYCRR 200.1[zz][11]) and the classification is not in dispute (Aug. 2, 2004 Tr. p. 15).  The record reveals that the child has a diagnosis of autism (Parent Ex. B at p. 1; see Sept. 10, 2004 Tr. pp. 38, 65, 67).  The child's speech and language impairment affects the areas of auditory processing and comprehension, expressive language, concept development and socialization (Parent Ex. A at p. 3). Other areas of need described in the transcript include "focusing issues" and need for redirection requiring the assistance of a behavioral paraprofessional (Sept. 10, 2004 Tr. p. 30).

           The record regarding the child's educational history is limited.  The record reveals that the child exhibited deficits in speech and language development from an early age (Parent Ex. B at p. 1).  His mother reported that she objected to a self-contained special education classroom recommended by the Committee on Special Education (CSE) when he transitioned from the Committee on Preschool Special Education (CPSE) to the CSE (Sept. 10, 2004 Tr. p. 65).  The child was then placed in a collaborative team teaching classroom for kindergarten and first grade (Sept. 10, 2004 Tr. p. 66). 

            In June 2003, at the age of six, an occupational therapy (OT) evaluation of the child was conducted focusing on sensory integration (Parent Ex. E).  The OT report revealed that the child had received sensory integration based OT in the past, with resulting benefits in the areas of pragmatics, improved attention and increased organization reported by the child's mother (Parent Ex. E at p. 1).  Administration of the Miller Assessment for Preschoolers (MAP), a comprehensive measure of the child's functional status (Parent Ex. E at p. 1), and the Sensory Profile, completed by the child's parents, provided information about his needs in the areas of processing and modulating sensory information (Parent Ex. E at p. 7).  Evaluation of the child's vestibular, proprioceptive, tactile and auditory systems revealed sensory processing deficits (id.). The child exhibited sensory modulation deficits characterized by sensory seeking and sensory avoidant behaviors (id.).  Motor planning and postural problems were also noted (id.).  Strengths were identified in the areas of visual and fine motor skills (id.). 

           In August 2003 the child began receiving tutorial services three hours per week (Parent Ex. A at p. 7).  By letter dated August 1, 2004, the tutor noted that the child's abilities improved in the areas of reading, writing, and mathematics from August 2003 (Parent Ex. N).  In the letter, the tutor described how in August 2003 the child could not form complete sentences and did not include punctuation, he could identify a clock but not tell time, and he could rote count to 30 and identify numbers up to 30 (id.). According to the tutor, by August 2004, reading skills included the child's ability to answer literal comprehension questions, make appropriate predictions and inferences related to text, and use visual cues to comment on the story (id.).  The child was able to write one or two complete sentences related to an illustration using punctuation approximately 80 percent of the time (id.).  Math skills were described as the ability to rote count to 100 and identify/write numbers up to 100 (id.).  He could add and subtract two single digit numbers with manipulatives (id.).  He could tell time to the hour and half-hour with assistance (id.).

           For the first half of the 2004-05 school year the CSE recommended a 12:1 collaborative team teaching class (Parent Ex. A at p. 1) with the related services of speech-language therapy two times per week in a small group at school, three times per week individually outside of school (Parent Ex. A at p. 7), individual OT sessions two times per week in school, four times per week outside of school (Parent Ex. A at p. 9-1), a full time integrated behavior management paraprofessional (id.), three hour per week tutoring (id.) and an integrated behavioral consultant three hours per month (Parent Ex. A at p. 9-2).  The CSE further recommended that the child receive testing accommodations such as extended time limits, directions read aloud, answers to be recorded in any manner, and examinations to be administered in alternate locations (Parent Ex. A at p. 9-1).

          Testimony indicated that district staff became aware in June 2004 that the child would be receiving services at the Davis Centers, Inc. (Sept. 10, 2004 Tr. pp. 9, 28).  Davis Centers, Inc. initially evaluated the child on June 3, 2004 (Parent Ex. O) and began Auditory Integration Training (AIT) on June 21, 2004 (Parent Ex. C). 

            By letter dated July 12, 2004 (IHO Ex. 1), petitioners requested an impartial hearing asserting a claim for reimbursement for the cost of auditory therapy their son received at the Davis Centers, Inc. beginning June 2004.  Petitioners were informed by the Davis Centers, Inc. that the child would need additional auditory therapy sessions during the 2004-05 school year to maximize the benefit of the program. On September 8, 2004, petitioners amended their claim    by asking for the following:  reimbursement for the costs of testing and evaluations; that auditory therapy at the Davis Centers, Inc. be added to the child's individualized education program (IEP); and prospective funding for the additional auditory therapy sessions be provided (IHO Ex. 2).  The hearing commenced on August 2, 2004 and concluded on September 10, 2004.  In a decision dated October 4, 2004, the impartial hearing officer found that respondent met its burden of proving the appropriateness of its program and denied petitioners' request for reimbursement and prospective funding (IHO Decision, p. 7).

            On appeal petitioners contend that the impartial hearing officer erroneously denied tuition reimbursement and prospective funding for evaluations and sound therapies provided by the Davis Centers, Inc. and allege that respondent did not meet its burden of demonstrating that the challenged IEP offered the child a free appropriate public education (FAPE).  Petitioners also allege that the child's goals and objectives on his IEP are defective because they do not include measurable standards or establish a schedule to assess the child’s progress and that the CSE violated the Individuals with Disabilities Education Act (IDEA) procedure by not conducting a functional behavioral assessment (FBA) and implementing a behavioral intervention plan (BIP).  Respondent asserts that the December 16, 2003 IEP complied with the procedural and substantive requirements of the IDEA, that it met its burden of demonstrating that the recommended program is reasonably calculated to confer educational benefits to the child, that petitioners have failed to show that without the therapy provided at the Davis Centers, Inc. the child could not reasonably been expected to make meaningful progress toward achieving his IEP annual goals, that petitioners testified that they agreed with the placement, and that equitable considerations do not support petitioners' claim for reimbursement or prospective funding.

        The purpose behind the IDEA is to ensure that children with disabilities have available to them a FAPE (20 U.S.C. § 1400[d][1][A]). A FAPE includes special education and related services provided in conformity with a written IEP (20 U.S.C. § 1401[8]), which is tailored to meet the student's unique needs. A board of education may be required to pay for educational services obtained for a student by his parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Burlington School Comm. v. Dep't of Educ., 471 U.S. 359 [1985].  Under equitable considerations "[f]actors that should be taken into account include the parties' compliance or noncompliance with state and federal regulations pending review, the reasonableness of the parties' positions, and like matters"(Burlington v. Dep't. of Educ.,736 F.2d 733, 801-02 (1st Cir. 1984) aff'd 471 U.S. 359 (1985).  This three-pronged test is commonly referred to as the Burlington/Carter test.  The fact that the private school selected by the parents has not been approved by the State Education Department is not itself a bar to reimbursement (Florence County School Dist. Four v. Carter, 510 U.S. 7 [1993]).

          A 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. Florida Union Free Sch. Dist., 142 F.3d 119, 122 [2d Cir. 1998]). To meet its burden of showing that it had offered to provide a FAPE to a student, the board of education must show (a) that it complied with the procedural requirements set forth in the IDEA, and (b) that the IEP developed by its 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]). If a procedural violation has occurred, relief is warranted only if the violation affected the student's right to a FAPE (J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]), e.g., resulted in the loss of educational opportunity (Evans v. Bd. of Educ., 930 F. Supp. 83, 93-94 [S.D.N.Y. 1996]), seriously infringed on the parents' opportunity to participate in the IEP formulation process (see W.A. v. Pascarella, 153 F. Supp.2d 144, 153 [D. Conn. 2001]; Brier v. Fair Haven Grade Sch. Dist, 948 F. Supp. 1242, 1255 [D. Vt. 1996]), or compromised the development of an appropriate IEP in a way that deprived the student of educational benefits under that IEP (Arlington Cent. Sch. Dist. v. D.K., 2002 WL 31521158 [S.D.N.Y. Nov. 14, 2002]). As for the substantive program itself, the Second Circuit has observed that "'for an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression'" (Weixel v. Bd. of Educ., 287 F3d 138, 151 [2d Cir. 2002], quoting M.S., 231 F.3d at 103 [citation and internal quotation omitted]; see Walczak, 142 F.3d at 130). The program recommended by the CSE must also be provided in the LRE (20 U.S.C. § 1412[a][5]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).

           An appropriate educational 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. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child with a Disability, Appeal No. 01-109; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). State and federal regulations require that an IEP include a statement of the student's present levels of educational performance, including a description of how the student's disability affects his or her progress in the general curriculum (34 C.F.R. § 300.347[a][1]; 8 NYCRR 200.4[b][5][ii][b] and [d][2][i][a]). School districts may use a variety of assessment techniques such as criterion-referenced tests, standard achievement tests, diagnostic tests, other tests, or any combination thereof to determine the student's present levels of performance and areas of need (34 C.F.R. Part 300, Appendix A, Question 1).

           An IEP must include measurable annual goals, with benchmarks or short-term objectives, related to meeting the student's needs arising from his or her disability to enable the student to be involved in and progress in the general curriculum, and meeting the student's other educational needs arising from the disability (34 C.F.R. § 300.347[a][2]; 8 NYCRR 200.4[d][2][iii][a] and [b]). In addition, an IEP must describe how the student's progress towards the annual goals will be measured and how the student's parents will be regularly informed of such progress (34 C.F.R. § 300.347[a][7]; 8 NYCRR 200.4[d][2][iii] and [x]).

           There is a dearth of evaluative information about the child and his educational needs in the record before me. Although there is evaluative data pertaining to the delivery of AIT, there is insufficient evaluative data, whether from reports or from the IEP document itself, from which a determination can be made as to the child’s current educational needs.  I find that the record does not demonstrate that respondent offered an appropriate educational program to petitioners' son.  The child’s December 16, 2003 IEP indicates that the child continues to have difficulty in areas such as listening, including demonstration of appropriate listening habits, answering questions related to a listening experience, and question comprehension (Parent Ex. A at p. 3).  Additional difficulties include vocabulary knowledge and use, concept development, development of morphological and syntactical structures, the use of appropriate speech acts, and the ability to use more than two or three word phrases when repeating another speaker's utterances (id.).  However, the record does not contain sufficient information to make a determination of the child’s current educational needs; nor can a determination be made whether AIT services provided at the Davis Centers, Inc. were appropriate.   The only evaluative information included in the record regarding the child is a private OT evaluation report from June 2003 (Parent Ex. E), an auditory diagnostic evaluation with a brief summary of the child’s history from the Davis Centers, Inc. dated June 3, 2004 (Parents Ex. B), and an initial assessment report from the Davis Centers, Inc. dated July 16, 2004 (Parent Ex. M).  Neither document from the Davis Centers, Inc. were previously before the CSE for a determination of whether the AIT services petitioners seek would meet the needs of the child. In the absence of additional evaluative data, neither of the Davis Centers, Inc. documents provide a basis on review to determine the child’s needs, nor do they provide me an adequate basis to determine whether AIT was, or is currently, appropriate.  I find that because the record did not include the necessary information pertaining to the child’s needs and present levels of performance, respondent did not meet its burden of demonstrating that the December 16, 2003 IEP offered a FAPE to the child (Application of a Child with a Disability, Appeal No. 95-71; Application of a Child with a Disability, Appeal No. 94-13).

            In addition to the insufficiency of evaluative data, I find that the annual goals and objectives in the December 16, 2003 IEP were not measurable as required by state and federal law (34 C.F.R. § 300.347[a][2]; 8 NYCRR 200.4[d][2][iii]).    Since there is no mention of how the child’s reading and writing annual goals or short-term objectives will be measured, I find that the goals and objectives as they are written denied the child educational benefit and denied the child a FAPE.

            Having determined that respondent did not meet its burden of proving that the December 16, 2003 IEP provided petitioners' son a FAPE, I must now consider whether petitioners have met their burden of proving that the services provided to the child beginning in June 2004 by the Davis Centers, Inc. were appropriate (M.S., 231 F.3d at 104; Application of a Child with a Disability, Appeal No. 95-57). In order to meet that burden, petitioners must show that the Davis Centers, Inc. offered an educational program which met their son's special education needs (Burlington, 471 U.S. at 370; M.S., 231 F.3d at 104-105). The private school need not employ certified special education teachers, nor have its own IEP for the student.

            I find that petitioners did not sufficiently develop the record to demonstrate whether the specific sound therapy program at the Davis Centers, Inc. met the needs of the child. 

            I find that the record does not demonstrate that the December 16, 2003 IEP offered an appropriate educational program to petitioners' son, and does not demonstrate whether the services petitioners obtained for their child were appropriate.


Topical Index

CSE ProcessSufficiency of Evaluative Info
Parent Appeal
Unilateral PlacementAdequacy of Related Services