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 New York City Department of Education
Hon. Michael A. Cardozo, Corporation Counsel, attorney for respondent, Thaddeus Hackworth, Esq., of counsel
Petitioners appeal from the decision of an impartial hearing officer which denied their request to be reimbursed for their son’s tuition costs at the Staten Island Montessori School (Montessori) for the 2005-06 school year. The appeal must be sustained in part.
At the time of the impartial hearing in June 2005, the child was eight years old and attending Montessori, where he had been unilaterally placed by petitioners. Montessori has not been approved by the Commissioner of Education as a school with which school districts may contract to instruct students with disabilities (see 8 NYCRR 200.7) The child's eligibility for special education programs and services as a child with a speech or language impairment is not in dispute (8 NYCRR 200.1[zz]).
The child attended Collaborative Team Teaching (CTT) classes in respondent's school with the assistance of a one-to-one paraprofessional for 80 percent of the school day, during the 2002-03 school year for kindergarten, and during the 2003-04 school year for first grade (Tr. pp. 12, 20, 27). Petitioners indicated that the child was not happy in kindergarten and first grade and they had been contacted several times by the school psychologist regarding the child's emotional outbursts in the CTT classroom (Tr. pp. 19, 23). At the hearing, petitioners’ representative indicated that in May 2004, petitioners were notified that their son was not successful in the CTT environment and that respondent recommended a more restrictive 12:1+1 classroom environment for the 2003-04 school year (Tr. p. 16). The child’s father testified that respondent recommended the 12:1+1 placement after the child’s teacher had reported observing the child exhibit hand flapping and echolalia (Tr. pp. 28-29). The petition indicates that petitioners were not in agreement with the recommendation and requested an impartial hearing. The petition further indicates that a previous impartial hearing occurred in August 2004, the result of which reportedly was an award of tuition reimbursement for the child’s attendance at Montessori for the 2004-05 school year. That impartial hearing was not addressed in the instant case.
In May 2004, petitioners’ son was referred for an assessment to change the child’s program to a more restrictive setting (Dist. Ex. 1 at p. 1). A psycho-educational assessment report completed in 2005 indicated that at the time of the May 2004 referral, the child had a diagnosis of a pervasive developmental disorder (PDD) (id.). The child was described as being highly distractible, socially immature, capable of being disruptive and noncompliant and largely unaware of class structure (id.). His reading fluency was described as well developed, and at least on grade level at that time (id.). Comprehension was described as inconsistent at best and his math and writing skills were reportedly not well developed (id.). The child was verbally responsive and answered some of the inquiries made by the examiner, but seemed to prefer nonverbal test activities and academic tests that involved limited interpersonal interaction (Dist. Ex. 1 at p. 2). During formal administration of the Wechsler Intelligence Scale for Children-IV (WISC-IV) the child was capable of participating in a partial battery, consisting largely of nonverbal tests and one memory test (id.). Although a full scale IQ score was not attainable, the student earned a perceptual reasoning index score of 84, which at the 14th percentile reflects low average visual perceptual ability and motor integration skills (id.). Relative weakness was noted in visual attention and visual reasoning (Dist. Ex. 1 at p. 3). Relative strengths were reported in the child's short-term auditory recall, and in visual integration skills (id.).
Administration of the Woodcock-Johnson Tests of Achievement III (W-J III) reflected average academic skills, with relative strengths in math calculation, spelling and math fluency (Dist. Ex. 1 at pp. 2-3). Relative weakness was seen in reading comprehension, reading fluency, and mathematical reasoning skills. According to the evaluator, even though his teachers at that time reported that the child was comfortable in the Montessori school program, the evaluator concluded that test results suggested that the child should continue to be monitored to insure that he was developing the necessary academic skills expected for a child of his age and cognitive ability.
The record contains one progress report from Montessori dated May 19, 2005, signed by the director and the head teacher (Parent Ex. A), and cited by the committee on special education’s (CSE) evaluating school psychologist in his psycho-educational evaluation report (Dist. Ex. 1). The progress report stated that the child was assigned a "shadow," who helped the child focus on daily tasks and insured that he followed through with directions and academic activities. The child’s classroom was described as a multi-age classroom of 24 students (Parent Ex. A) where both large and small group instruction occurred (Dist. Ex. 1 at p. 1). He was described as understanding directions and the class routine (id.). Verbal ability reportedly improved between September 2004 and May 2005 (id.). With the assistance of the shadow, the child completed a variety of academic responsibilities (id.). By May 2005 the child was reportedly working on the second grade speller and reader, was on grade level, participated in art, music, gardening, yoga, and Spanish (Dist. Ex. 1 at pp. 1, 2). The child was described as having made connections socially, having interacted with peers both inside and outside of school and he reportedly made a significant connection with the individual assigned to be the child's shadow (Dist. Ex. 1 at p. 2).
The CSE met on June 7, 2005 to make recommendations for the child for the 2005-06 school year (Dist. Ex. 2; Tr. pp. 11-12). Recommendations included continued classification as a child with a speech or language impairment. Program recommendations included placement of the child in a 12-month CTT class with a student to teacher ratio of 12:1, with related services of speech and language therapy three times a week for 30 minutes in a group of 1:1, occupational therapy (OT) two times a week for 30 minutes in a group of 3:1, and a health paraprofessional to be with the child for 80 percent of his school day (id.).
A request for an impartial hearing was initiated by petitioners on March 15, 2005 (Tr. p. 9). Petitioners requested an impartial hearing to determine the most appropriate classroom setting to meet their son’s academic, social and emotional needs. The impartial hearing was scheduled to begin in April 2005 (id.). Respondent requested an adjournment because the date conflicted with another case and it was ultimately rescheduled for May 19, 2005 (id.). A third adjournment request to provide time to complete evaluations was granted and the impartial hearing was then scheduled for June 1, 2005 (id.). On June 1, 2005, the impartial hearing was adjourned due to an expedited CSE meeting which was held on June 7, 2005 and the impartial hearing was rescheduled to June 22, 2005 (Tr. pp. 3, 9, 11). Respondent asserts that the adjournment of the June 1, 2005 hearing date was upon mutual agreement of the parties (Answer ¶ 4).
The impartial hearing was conducted on June 1 and June 22, 2005 and the impartial hearing officer issued a decision on July 27, 2005 (IHO Decision, pp. 2, 5). The impartial hearing officer denied petitioners’ request for tuition and ordered the CSE to reconvene to determine an appropriate placement for the child (IHO Decision, pp. 4-5). The impartial hearing officer found that respondent failed to meet its burden of proving the appropriateness of its program (IHO Decision, p. 4). She also found that there was insufficient evidence in the record to make a determination as to the appropriateness of the proposed placement for the 2005-06 school year (id.).
On appeal, petitioners contend that due to the lengthy delay in the commencement of the impartial hearing, occasioned by the adjournments granted at respondent’s request, Montessori was closed for summer recess and they were unable to have witnesses testify on their behalf. They also contend that report cards are mailed in July and a copy of the student’s report card was provided to respondent, but not in time to be disclosed as evidence during the impartial hearing. Petitioners assert they submitted a progress report dated May 19, 2005 (Parent Ex. A) which indicated that the program was beneficial to their son but that respondent never visited Montessori to observe the child in his classroom environment and did not make any attempts to contact anyone at Montessori during the 2004-05 school year to discuss the child’s progress and to monitor his individualized education program (IEP) goals. Petitioners dispute respondent’s assertions that the child’s IEP goals cannot be carried out, measured or followed while the child is attending Montessori, and petitioners state they have met with the director of Montessori and the child’s paraprofessional to discuss his progress and goals. Petitioners also claim that while they agree with the services recommended by respondent including speech-language therapy, OT, and a paraprofessional, they are not in agreement with the recommended CTT class. Petitioners further claim they have noticed tremendous improvements in their child’s academic and social skills since his enrollment at Montessori. They contend his self-stimulating behaviors have been greatly minimized and his attention span has increased. They further assert that the curriculum at Montessori includes many manipulative materials and allows their son to work at his own pace and that this style of education works well for him. They request that a State Review Officer overturn the impartial hearing officer’s decision and grant their request for tuition reimbursement for the 2005-06 school year.
Respondent asserts in its answer that the verified petition fails to state a claim upon which relief may be granted. Respondent further asserts that petitioners failed to meet their burden of proving that their unilateral placement of the child in Montessori is appropriate.
The purpose behind the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400 - 1487) is to ensure that students with disabilities have available to them a free appropriate public education (FAPE) (20 U.S.C. § 1400[d][A]).1 A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP (20 U.S.C. § 1401[D]; 34 C.F.R. § 300.13; see 20 U.S.C. § 1414[d]).2 A board of education may be required to reimburse parents for their expenditures for private special educational services obtained for a student by his or her parent, if the services offered by the board of education were 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, 370 ; Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 ). 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 ). 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, 32 U.S. 942 ; Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 122 [2d Cir. 1998]; Application of a Child with a Disability, Appeal No. 04-043).
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 ). Not all procedural errors render an IEP legally inadequate under the IDEA (Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]). 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]; Briere 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 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 F.3d 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). This progress, however, must be meaningful; i.e., more than mere trivial advancement (Walczak, 142 F.3d at 130). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a]).
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. 04-046; 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 Suspected of Having a Disability, Appeal No. 93-9). Federal regulation requires 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]; see also 8 NYCRR 200.4[d][i]). 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, Section 1, Question 1).
An IEP must also include a statement of the special education and related services and supplementary aids and services to be provided to or on behalf of the student, as well as a statement of the program modifications or supports for school personnel that will be provided to the student (34 C.F.R. § 300.347[a]; see 8 NYCRR 200.4[d][iv]). Such education, services and aids must be sufficient to allow the student to advance appropriately toward attaining his or her annual goals (34 C.F.R. § 300.347[a][i]; see 8 NYCRR 200.4[d][iv][a]).
An IEP must also include measurable annual goals, including 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]; see 8 NYCRR 200.4[d][iii]). 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]; 8 NYCRR 200.4[d][x]).
The first issue to be addressed is whether respondent offered the child an appropriate program. The June 7, 2005 IEP describes the child's present level of performance in the academic domain as well as the cognitive present levels of performance the evaluator had been able to obtain during the May 2005 psychoeducational reassessment (Dist. Ex. 2 at p. 3A). Results of the Perceptual Reasoning Index of the WISC-IV are included, and are described as being in the low average range (id.). A relative strength is noted in the child's short-term auditory memory (id.). Weakness is noted in the child's ability to demonstrate visual attention to details omitted from familiar objects and in visual reasoning (id.). Results of the May 2005 administration of the W-J III indicated the child's relative strength in math calculation skills, and weakness in reading comprehension, reading fluency, and math reasoning (id.). Academic goals and objectives attempted to address mathematical reasoning and assessment, but the goals and objectives do not state the level of performance required for mastery and do not indicate what type of measurement would have been used to assess progress (Dist. Ex. 2 at p. 6A).
The IEP description of the child's present levels of performance in the academic domain also includes a description of his present level in speech and language (Dist. Ex. 2 at 3B). It states that the child exhibited "a moderate, expressive language delay characterized by the reduced ability to utilize age appropriate syntactical and morphological structures" (id.). Receptive language was described as delayed, characterized by "reduced ability to answer simple questions and follow two-step directions containing basic concepts" (id.). A "mild oral feeding disorder" was noted, characterized by the child's "reduced ability to eat foods of varied textures" (id.). These descriptors are generalizations and offer insufficient information about the child's present levels of performance in receptive language, expressive language, or oral feeding. The record does not include a speech and language evaluation or evaluation update from which needs and goals and objectives can be clearly established. The speech-language goals and objectives included in the IEP are behaviorally vague, stating, for example, that the student will "increase expressive vocabulary skills" (Dist. Ex. 2 at pp. 6E-6F). Percentages of expected achievement are noted, but what the child would actually be working towards is unclear, thus making it difficult for the related service provider and the parent to determine what to specifically anticipate regarding the child's progress. The foregoing is especially significant because the child is classified as a child with a speech or language impairment. The speech and language section of the IEP is particularly weak and does not adequately reflect the child’s needs in this area.
The IEP contains four OT goals (Dist. Ex. 2 at pp. 6C-6D). Although there is no formal evaluative OT data included in the record, a clear anecdotal description of the child's OT concerns (Dist. Ex. 2 at p. 5) is provided, from which the goals and objectives apparently emanate. The OT goals are behaviorally stated, but not measurable. However, the OT objectives are behaviorally stated and measurable, as they include clear statements of the tasks to be performed, as well as the number of trials and the percentage of progress required for mastery. I find that the objectives for the OT goals provide sufficient specific information to clarify the goals (Dist. Ex. 2 at pp. 6C-6D).
Portions of the IEP's description of the child's present levels of performance in the social-emotional domain are consistent with the description of the child's performance during his May 16, 2005 psychoeducational evaluation (Dist. Exs. 1, 2). The report described the child as able to work with the evaluator, motivated to perform test activities and demonstrating a preference for test activities that involved limited test interaction (Dist. Ex. 1 at p. 2). The evaluator also cited a May 2005 progress report from the child's teacher at Montessori, which indicated that a one-to-one aide assisted the child with academic tasks (Dist. Ex. 1, Parent Ex. A). The progress report from Montessori is in the record (Dist. Ex. 1). It describes the child as participating in activities with the assistance of his “shadow” (Parent Ex. A p. 1). The Montessori progress report also describes the child as "becoming interested in his peers" and interacting with classmates both in school and outside of school, and noted that his one-to-one aide was "crucial in his continued growth and development" (Parent Ex. A at p. 2). In her psychoeducational evaluation report, the evaluator also described the child's performance in the classroom during the previous school year by noting that his May 2004 IEP stated that the child required one-to-one supervision to help him focus and to ensure that he followed directions and participated in academic activities (Parent Ex. A at p. 1). She also reported that a May 2004 psychoeducational evaluation of the child stated that he was "highly distractible, socially immature…disruptive and non-compliant, and is largely unaware of the class structure" (id.).
This limited information in the record suggests that the child's behavior during the 2003-04 school year seriously interfered with his ability to benefit from instruction. It also suggests that his behavior improved markedly in 2004-05. However, it is not possible to determine, based on the record before me, whether the child's behavior has stabilized or if he is exhibiting fewer inappropriate behaviors because he is receiving more intensive intervention. The June 7, 2005 IEP does not reflect any discussion or analysis of the factors affecting the child's present performance in the social-emotional domain. The IEP's description of the child's present level of performance indicates that the child was capable of following directions but exhibited limited motivation to do so on certain tasks, and that his eye contact was "minimal" (Dist. Ex. 2 at p. 4). This description indicates that the child's social-emotional status had improved from the previous school year but does not reflect the degree of improvement described in the Montessori progress report (Dist. Ex. 2 at p. 4, Parent Ex. A). It is not clear how the CSE made this determination. The proposed goals and objectives addressing the child's behavioral needs do not provide clarification. The IEP contains two behavioral goals, both of which state that the student will "improve school performance" (Dist. Ex. 2 at p. 6B). The first goal has three objectives addressing time on task and one objective addressing eye contact (id.). The second goal contains one objective addressing time on task which is identical to the first objective on the previous goal, plus objectives addressing inappropriate touching of objects, speaking in class without permission and making inappropriate sounds (id.). While the objectives addressing on-task behavior appear to be related to the stated present performance levels, they do not reflect the information in either the psychoeducational evaluation report or the Montessori progress report, nor do they indicate the conditions under which the child is expected to perform, as they do not indicate whether the child is to be under the supervision of a one-to-one aide when he achieves them. The objectives addressing inappropriate touching and inappropriate verbalizations do not reflect any descriptions of the child in the record before me. While they may indeed address identified behaviors exhibited by the child, there is no information in the record supporting the need for these objectives, and I cannot find, based on the record before me, that they are appropriate.
Based upon the above, I concur with the impartial hearing officer that respondent did not meet its burden of demonstrating that it offered a FAPE for the 2005-06 school year.
Having determined that respondent has not met its burden of proving that it had offered to provide a FAPE to the child during the 2005-06 school year, I must now consider whether petitioners have met their burden of proving that the services offered to the child by Montessori were appropriate (Burlington, 471 U.S. 359; Application of the Bd. of Educ., Appeal No. 03-062; Application of a Child with a Disability, Appeal No. 02-080). In order to meet that burden, the parents must show that the services provided were "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., that the private school offered an educational program which met the child's special education needs (Application of a Child with a Disability, Appeal No. 04-108; Application of a Child with a Disability, Appeal No. 01-010). The private school need not employ certified special education teachers or have its own IEP for the student (Carter, 510 U.S. 7; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-105).
With regard to second Burlington criterion, i.e., whether the services selected by the parents were appropriate, I have carefully reviewed the parents’ testimony and the limited documentary evidence in the record. Upon the record before me, I am unable to find that petitioners have met their burden of proof. The record does not demonstrate that Montessori offers programming or is in fact adequately addressing the child’s significant language needs. The progress report (see Parent Ex. A) provides only a general description of the classroom, classroom activities and the Montessori philosophy. It does not provide an adequate description of the appropriateness of services to address the child’s academic and social and behavioral needs other than by providing an aide. There is no indication of specialized instruction offered and no description of how the program was adapted to allow meaningful participation in the Montessori activities. It is unclear how the child actually works and behaves in the classroom environment, or what he works on. There are no work samples, tests, or other relevant material in the record which can be utilized to determine whether the program offered is appropriate to address the child's needs, even though petitioners’ testimony reflects that the child did well at Montessori academically and behaviorally, and that at Montessori, the student's progress is measured by giving weekly spelling tests, and math tests twice a month (Tr. pp. 19, 29-30).
Although the evidence in the record does not demonstrate that Montessori is appropriate for this child, I am concerned about petitioners’ assertions that the adjournments, primarily made at the request of the respondent, prejudiced petitioners. Specifically, petitioners allege that the adjournments operated to the detriment of the presentation of their complaint at the impartial hearing in that certain witnesses became unavailable to testify (34 C.F.R. § 300.510 [b][ii]). I have also taken into consideration that petitioners were proceeding pro se at the hearing below. Having found that respondent did not meet its burden, I will remand this matter for another impartial hearing for the purpose of allowing submission of additional documentary and testimonial evidence, by either party, solely on the issues of whether the services selected by the parent were appropriate and whether equitable considerations support the parents' claim for reimbursement.
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that the impartial hearing officer’s decision is hereby annulled to the extent it determined that Montessori was an inappropriate placement; and
IT IS FURTHER ORDERED that petitioners’ request for a hearing on behalf of the student is reinstated and that, unless the parties otherwise agree, the matter shall be remanded to the impartial hearing officer below within 30 days from the date of this decision, or to another impartial hearing officer if she is not available, for the purpose of allowing submission of additional documentary and testimonial evidence, by either party, solely on the issues of whether the services selected by the parents were appropriate and whether equitable considerations support the parents’ claim for reimbursement.
1 The term "free appropriate public education" means special education and related services that--
(A) have been provided at public expense, under public supervision and direction, and without charge;
(B) meet the standards of the State educational agency;
(C) include an appropriate preschool, elementary, or secondary school education in the State involved; and,
(D) are provided in conformity with the individualized education program required under section 1414(d) of this title.
20 U.S.C. § 1401(8).
2 On December 3, 2004, Congress amended the IDEA, however, the amendments did not take effect until July 1, 2005 (see Individuals with Disabilities Education Improvement Act of 2004 [IDEIA], Pub. L. No. 108-446, 118 Stat. 2647). Citations contained in this decision are to the statute as it existed prior to the 2004 amendments. The relevant events in the instant appeal took place prior to the effective date of the 2004 amendments to the IDEA, therefore, the provisions of the IDEIA do not apply.