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 New York City Department of Education
Mayerson & Associates, attorney for petitioners, Gary S. Mayerson, Esq., of counsel
Hon. Michael A. Cardozo, Corporation Counsel, attorney for respondent, Duncan Peterson, Esq., of counsel
Petitioners appeal from the decision of an impartial hearing officer which denied their request to be reimbursed for the cost of applied behavioral analysis (ABA) services for their daughter during the 2004-05 and 2005-06 school years. The appeal must be sustained in part.
At the commencement of the impartial hearing in August 2005, the child was seven years old, and attending first grade in a collaborative team teaching (CTT) class in respondent's PS 6 school (Tr. p. 26). The child's history includes a longstanding diagnosis of pervasive developmental disorder (PDD), associated with developmental delays in speech and language, and in fine and gross motor skills (2004-05 Parent Ex. 1 at p. 1). The child has expressive, receptive, and pragmatic language deficits, and also has an auditory processing disorder (2005-06 Parent Ex. 13 at p. 1). She receives ABA services and related services including speech-language therapy, occupational therapy and physical therapy (2005-06 Parent Ex. 9 at p. 1). The child's eligibility for special education programs and classification as a student with autism are not in dispute in this appeal (see 8 NYCRR 200.1[zz]; Tr. pp. 11, 65; 2005-06 Parent Ex. 2 at p. 1).
Petitioners' daughter was diagnosed with PDD at 21 months of age in June 2000 by a developmental pediatrician/pediatric neurologist (2005-06 Parent Exs. 9 at p. 1, 11 at p. 1). Since August 2000, the child has been receiving special education services, including ABA instruction, physical therapy, occupational therapy, and speech-language services (2005-06 Parent Ex. 9 at p. 1).
Prior to attending kindergarten during the 2004-05 school year at PS 6 (2005-06 Parent Ex. 9 at p. 1), the child attended a private nursery school in a mainstream preschool setting (Tr. p. 23; 2004-05 Parent Ex. 4 at p. 1; Pet. Ex. A at p. 2). During the 2003-04 school year, in her preschool year, respondent provided the child with a continuation of the special education services recommended for the 2002-03 school year (Pet. Ex. A at p. 1). These services included: 40 hours per week of ABA services consisting of 15 hours of special education itinerant teacher (SEIT) services during the school day and 25 hours of home-based therapy, speech-language therapy and occupational therapy, each five hours per week, and physical therapy three hours per week (id.). Petitioners provided additional hours of home-based ABA services (id.).
The child's services were the subject of an impartial hearing during March 2003 pertaining to the 2003-04 school year (Pet. Ex. A at pp. 2, 9). At this time, the child was 5 years old (Pet. Ex. A at p. 2). On April 19, 2004, the impartial hearing officer found that respondent failed to meet its burden with respect to the appropriateness of its program (Pet. Ex. A at pp. 6-7). Petitioners established the appropriateness of the private school services (Pet. Ex. A at p. 7), and prevailed with respect to equitable considerations (Pet. Ex. A at p. 8). The order resulting from the April 19, 2004 impartial hearing directed respondent to: 1) reimburse petitioners for the child's private school tuition; 2) provide the child with 40 hours per week of ABA services, including both direct and indirect services, in school and at-home; 3) provide petitioners with two hours per week of parent counseling and training, and reimburse petitioners for such training already incurred during the 2003-04 school year; and 4) continue to provide the child with related services (speech-language therapy, occupational therapy, and physical therapy) according to her individualized education program (IEP), for the remainder of the 2003-04 school year (Pet. Ex. A at p. 9). Petitioners' request for ABA services of 50 hours per week was denied (id.).
By letter dated June 24, 2004, petitioners requested an impartial hearing pertaining to services for the 2004-05 school year and summer 2005.
Respondent's Committee on Special Education (CSE) met on June 28, 2004 (2004-05 Parent Ex. 24 at p. 1). For the 2004-05 school year, the June 2004 CSE recommended that the child be enrolled in a CTT class with a 12:1 student to teacher ratio, and a fulltime crisis management paraprofessional (2004-05 Parent Ex. 24 at pp. 1, 7). In addition, the June 2004 CSE recommended that she receive 60-minute sessions of individual speech-language therapy and occupational therapy, each five times a week and 60-minute sessions of individualized physical therapy three times a week, all in a separate location (2004-05 Parent Ex. 24 at p. 7). A twelve-month school year was recommended (2004-05 Parent Ex. 24 at p. 1).
By Memorandum dated August 16, 2004, from respondent's Office of Legal Services to respondent's Bureau of Contract Aid and CSE Chairperson, respondent stated that it was obligated to continue the child's placement in her "SEIT program," including related services of speech-language therapy, occupational therapy, physical therapy, and parent counseling, according to the April 19, 2004 Impartial Hearing Officer Decision (Pet. Ex. C). Respondent anticipated that its obligation to fund the program and related services would terminate prior to the end of the 2004-05 school year, and indicated that, absent specific authorization from the Office of Legal Services, funding should not continue beyond the end of the 2004-05 school year (id.). The impartial hearing requested for the 2004-05 school year and summer 2005 was suspended in anticipation of settlement (Tr. pp. 17-19; Pet. ¶ 14). A settlement for this time period was not reached (Tr. p. 18).
During the 2004-05 school year, the child attended the CTT kindergarten classroom at PS 6, as recommended by respondent's CSE (Tr. p. 26; 2004-05 Parent Ex. 24). The CTT class included approximately 21 to 22 students, of which approximately one third had IEPs (Tr. p. 43). The child did not receive the services of a paraprofessional (Tr. pp. 113-14). Rather, she received SEIT services in the mainstream classroom for the entire school day (Tr. pp. 30, 113-14), and received approximately three hours a day of direct ABA instruction at home (Tr. p. 35). She also received respondent's related services of speech-language therapy, occupational therapy, and physical therapy (Tr. pp. 134, 155, 156; 2004-05 Parent Ex. 20 at p. 7).
In addition to a classroom observation report (2004-05 Parent Ex. 4), a social history report (2004-05 Parent Ex. 15), and teacher reports (2004-05 Parent Exs. 5, 26; 2005-06 Parent Ex. 16), petitioners submitted multiple evaluations as part of the record (2004-05 Parent Exs. 2, 3, 6, 7, 8, 9, 10, 11, 12, 13, 16, 17; 2005-06 Parent Exs. 3, 4, 7, 8, 9, 10, 11, 12, 15, 17, 18). In an evaluation dated December 29, 2004, the child's neuro-developmental pediatrician stated that the child's spontaneous language and conversation skills had improved since her last appointment in March 2004, but despite her vocabulary and fund of knowledge she continued to have difficulty with the content, form and, in particular, use of language (2005-06 Parent Ex. 17 at p. 3). She had difficulty discriminating "wh-" questions (id.). Her imaginative play had also improved, but she required continued therapy to address deficits in her fine and gross motor skills, and writing and drawing skills (id.). The evaluator stated that the child's memory skills were likely helping her compensate for her deficits (id.).
In order to determine the child's developmental status and needs, petitioners obtained a comprehensive evaluation of the child, conducted from March 22 to April 6, 2005 (2005-06 Parent Ex. 13), from the McCarton Center, which specializes in developmental pediatrics. Administration of the Wechsler Preschool and Primary Scales of Intelligence-Third Edition (WPPSI-III) yielded a full scale IQ score of 88 (21st percentile, low average range of intellectual functioning), a verbal IQ score of 100 (50th percentile, average range), and a performance IQ score of 86 (18th percentile, low average range) (2005-06 Parent Ex. 13 at pp. 5, 11). The evaluator stated that the child's profile revealed "some good verbal scores with relatively weak verbal comprehension and weak visual-motor planning" (2005-06 Parent Ex. 13 at p. 8). The child's standard score of 73 on subtests of the WIPPSI measuring processing speed was in the 4th percentile (borderline range) (2005-06 Parent Ex. 13 at pp. 6, 11). She demonstrated limited processing skills and performed poorly on timed tasks (2005-06 Parent Ex. 13 at p. 8). The evaluator reported that the child's decoding and single word spelling skills had improved, and her performance on tests of rote mathematical operations skills yielded results in the average range (2005-06 Parent Ex. 13 at pp. 8, 11-12). The evaluator reported that the child had difficulty applying mathematical concepts, but did not include math concept test scores in her report (id.).
Administration of the Wide Range Achievement Test - Third Edition (WRAT-3) yielded a standard score of 140 (99th percentile, 3rd grade equivalent) in reading, a standard score of 115 (84th percentile, 2nd grade equivalent) in spelling, and a standard score of 90 (25th percentile, kindergarten grade equivalent) in mathematics (2005-06 Parent Ex. 13 at p. 11). The child achieved a standard score of 116 (84th percentile, 8-2 year age equivalent) on the Expressive One-Word Picture Vocabulary Test-Revised, and a standard score of 101 (53rd percentile, 6-6 year age equivalent) on the Receptive One-Word Picture Vocabulary Test-Revised (2005-06 Parent Ex. 13 at p. 12). Administration of the Developmental Test of Visual-Motor Integration yielded a standard score of 52 (2nd percentile, 3-11 year age equivalent) (id.). The child received a moderately low composite adaptive level score on the Vineland Adaptive Behavior Scale, with moderately low adaptive level scores in the communication, socialization, and motor skills domains, and low adaptive level scores in the daily living skills domain (id.).
Respondent's CSE met on May 11, 2005 for the child's annual review (2005-06 Parent Ex. 2 at p. 1). The IEP indicated that the child had been making "significant progress" (Tr. p. 150; see also Parent Ex. 2 at p. 4). For the 2005-06 school year, the May 2005 CSE recommended that the child continue her 12-month placement in the 12:1 CTT class with the same level of related services she received in the 2004-05 school year (2004-05 Parent Ex. 24 at pp. 1, 7; 2005-06 Parent Ex. 2 at pp. 1, 9). Recommended testing accommodations to be used consistently throughout the child's educational program included: a 1.5 extended test taking period, the provision of a "non distractible room," authorization to record answers in any manner, directions read and re-read, and the provision of masks and markers to "maintain place" (2005-06 Parent Ex. 2 at p. 9). The child currently receives the following supplemental services: 40 hours of ABA SEIT services, three hours of physical therapy, five hours of speech-language therapy, five hours of occupational therapy per week (2005-06 Parent Exs. 2 at p. 9; 9 at p. 1; Pet. Ex. A at p. 9). In addition, she receives SEIT supervisor services for three hours per week (Tr. pp. 37-38).
By letter dated July 12, 2005, petitioners restated their 2004-05 claims not resolved by settlement and amended their hearing request to include, inter alia, a request for reimbursement for private services obtained during 2005-06 school year (Pet. Ex. D). By letter dated July 13, 2005, petitioners supplemented their July 12, 2005 hearing request (Pet. Ex. D at p. 2).
An impartial hearing convened on August 30, 2005 and concluded on October 24, 2005, after three days of hearings. On August 30, 2005, the impartial hearing officer determined that the child's then current placement was the child's pendency placement (Tr. pp. 1, 4).1 At the impartial hearing, respondent presented no witnesses or evidence and conceded that it had not offered the child a free appropriate public education (FAPE) (Tr. p.17).2 A review of the record also reveals that at the hearing respondent did not contest the appropriateness or cost of the privately obtained services, or argue that equities did not support an award or reimbursement. In a decision, dated December 6, 2005, the impartial hearing officer found that respondent did not offer the child a FAPE (IHO Decision, pp. 2, 6) but concluded that the privately obtained supplemental services delivered, in combination with her classroom schedule, were "exhaustive" for the child and therefore inappropriate (IHO Decision, p. 9). As to the appropriateness of the private services she found that there "...was no objective, independent testimony to show that this level of services was necessary" (id.). She also determined that the costs of the services obtained were "unreasonable" (id.) and that the submitted invoices were not consistent with the amount of reimbursement requested (IHO Decision, p. 8).The impartial hearing officer denied petitioners' request for reimbursement of the SEIT supervisor's services from September 2004 through August 2005, and declined to order reimbursement for SEIT and SEIT supervisor services from September 2005 through August 2006 (IHO Decision, pp. 8-9). She remanded the matter to the CSE for further review and recommendation (IHO Decision, p. 10).
This appeal ensued. Petitioners seek reimbursement for the SEIT supervisor's services from September 2004 through August 2005 (respondent paid for the SEIT service providers, excluding the SEIT supervisor services, for the 2004-05 school year as a result of pendency [Tr. pp. 91-92, 138]) and for SEIT services for the 2005-06 extended school year.
A purpose behind the Individuals with Disabilities in Education Act (IDEA) (20 U.S.C. §§ 1400 - 1487)3 is to ensure that students with disabilities have available to them a FAPE (20 U.S.C. § 1400[d][A]; Schaffer v. Weast, 126 S. Ct. 528 ). 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]). A board of education may be required to reimburse parents for their expenditures for private 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 ; Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 ; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). In Burlington, the court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (id.). Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance had it developed a proper IEP" (Burlington, at 370-71; see Application of the Bd. of Educ., Appeal No. 05-073).
Before addressing the merits of petitioners' appeal, a preliminary matter must be resolved. Petitioners claim that the impartial hearing officer erred by demonstrating bias toward respondent at the impartial hearing. I disagree. An impartial hearing officer may ask questions of counsel or witnesses for the purpose of clarification or completeness of the record (8 NYCRR 200.5[j][vii]). He or she must be fair in dealing with the parties and should take care to avoid the appearance of bias or prejudice (Application of a Child with a Disability, Appeal No. 05-106; Application of a Child Suspected of Having a Disability, Appeal No. 04-059; Application of a Child with a Disability, Appeal No. 04-018; Application of a Child with a Disability, Appeal No. 04-010; Application of a Child with a Disability, Appeal No. 03-071, Application of a Child with a Disability, Appeal No. 01-046). In this appeal, the impartial hearing officer asked questions for the purpose of clarification or completeness of the record. Although petitioners disagree with the conclusions reached by the impartial hearing officer, that disagreement does not provide a basis for a finding of bias (Application of a Child with a Disability, Appeal No. 05-106; Application of a Child Suspected of Having a Disability, Appeal No. 04-059; Application of a Child with a Disability, Appeal No. 96-3; Application of a Child with a Disability, Appeal No. 95-75). I find that there is no evidence of impropriety or bias in the record.
I concur with the impartial hearing officer's determination that respondent's conceded at the impartial hearing that they did not offer petitioner's daughter a FAPE. Petitioners, therefore, have prevailed with respect to the first Burlington criterion for an award of tuition reimbursement.
As to the second Burlington criterion, I do not find that the record affords a basis for the impartial hearing officer's conclusion that the private services were inappropriate. The record includes multiple evaluation reports from SEIT professionals who provided educational services to the child (2004-05 Parent Exs. 10, 13, 16; 2005-06 Parent Exs. 7, 8, 9, 10), as well as related testimony from one of these service providers (Tr. p. 114-27) and from the SEIT supervisor (Tr. pp. 20-55, 82-114). It also includes evaluations from physicians (2004-05 Parent Exs. 3, 6; 2005-06 Parent Exs. 13, 17), psychologists (2004-05 Parent Exs. 6, 17; 2005-06 Parent Exs. 4, 13), a private speech pathologist (2004-05 Parent Ex. 2; 2005-06 Parent Ex. 15) and related service providers who did not testify at the impartial hearing (2004-05 Parent Exs. 7, 8, 9, 11, 12; 2005-06 Parent Exs. 3, 11, 12, 18). The hearing testimony and evaluation reports from the SEIT team, physicians, and other evaluators, were uncontroverted, and opined that the private services obtained were appropriate to the child's needs. I find that the impartial hearing officer erred in finding that the hearing record demonstrated otherwise. I note also that respondent did not raise an argument at the hearing that the level of services went beyond what was required to offer some educational benefit to the child, and although respondent raised this issue on appeal, I consider that argument waived for purposes of this review.
Moreover, I find, in the circumstances presented herein, that the impartial hearing officer erred in concluding that the private services were inappropriate because of a lack of "objective, independent testimony to show that the level of services the student received was necessary" (IHO Decision, p. 9). As noted above, respondent presented no evidence challenging the appropriateness of the services although it had the opportunity to do so (8 NYCRR 200.5[i][xi]). Moreover if the impartial hearing officer believed that an independent evaluation was necessary as part of the hearing she could have ordered that one take place at public expense (8 NYCRR 200.5[i][viii]).
Accordingly, based upon my review of the hearing record, I find that petitioners have prevailed with respect to the second Burlington criterion for an award of tuition reimbursement for their daughter's ABA SEIT program at PS 6 for the 2004-05 and 2005-06 school years.
The final criterion for an award of tuition reimbursement is that petitioner's claim be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; M. C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required"]). Such considerations "include the parties' compliance or noncompliance with state and federal regulations pending review, the reasonableness of the parties' positions, and like matters" (Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001], citing Town of Burlington v. Dep't of Educ., 736 F.2d at 773, 801-02 [1st Cir. 1984], aff'd, 471 U.S. 359 ). With respect to equitable considerations, a parent may be denied tuition reimbursement upon a finding of a failure to cooperate with the CSE in the development of an IEP or if the parent's conduct precluded the CSE's ability to develop an appropriate IEP (Warren G. v. Cumberland Co. Sch. Dist., 190 F.3d 80, 86 [3rd Cir. 1999]; see Application of the Bd. of Educ., Appeal No. 04-102; Application of the Bd. of Educ., Appeal No. 04-026). In the absence of evidence demonstrating that petitioners failed to cooperate in the development of the IEP or otherwise engaged in conduct that precluded the development of an appropriate IEP, or failed to give proper notice, equitable considerations generally support a claim of tuition reimbursement (Application of a Child with a Disability, Appeal No. 04-049).
The child's mother testified that she was cooperative and communicative with the CSE at all times (Tr. p. 141). Respondent does not claim otherwise. Nor is there evidence that petitioners' conduct precluded the CSE's ability to develop an appropriate IEP. To the contrary, the record reflects a strong collaboration among petitioners and the public and private service providers, with a helpful exchange of information taking place in respondent's classroom and at petitioners' home (Tr. pp. 42, 43, 47, 48, 85, 86, 89, 90, 104, 106, 107, 108). Respondent raises no defenses pertaining to notice of unilateral placement (20 U.S.C. § 1412[a]; Application of a Child with a Disability, Appeal No. 05-098). However, the impartial hearing officer found that the invoices for services from September 23, 2004 through March 29, 2005 (2005-06 Parent Exs. 26, 27, 28) failed to "match" documents offered into evidence (IHO Decision, p. 8). In addition, the impartial hearing officer determined that the cost of SEIT services was unreasonable, in view of the reported availability of these services offered in a different program in the public school (IHO Decision, p. 9).
The reasonableness of the cost of services which a parent has obtained is to be considered in determining whether equitable considerations support the parents claim for tuition reimbursement (Florence County School Dist. Four v. Carter, 510 U.S. 7 ). Where the costs of private services are excessive, an impartial hearing officer may limit a parent's claim for tuition reimbursement (Application of a Child with a Disability, Appeal No. 00-060; Application of a Child with a Disability, Appeal No. 97-10; Application of a Child with a Disability, Appeal No. 96-8).
Upon the record before me, I find unpersuasive the impartial hearing officer's conclusion that the costs of SEIT services were unreasonable on the basis that such services were offered in a different program in the public school (IHO Decision, p. 9). The record does not contain evidence indicating that these services were offered in another program in the public school, and were available to petitioner's daughter, or were ever recommended to petitioners' child.
I do however have concerns regarding the sufficiency of evidence in the record pertaining to proof of payment. The cost of the SEIT supervisor services calculated by petitioners (2005-06 Parent Exs. 26 at p. 1; 28 at p. 1) does not appear to accurately reflect the invoices and credit card statements made a part of the record (2005-06 Parent Exs. 26, 27, 28). Consistent with respondent's answer (Ans. ¶72) the record does suggest that reimbursement requested in the amount of $21,026.20 by petitioners for SEIT supervisor services was erroneously calculated given documentation in the record which appears to actually identify the costs at $10,512.38. In the absence of any other equitable factor, I find that, in general, petitioners' claim for reimbursement of the services provided by the SEIT supervisor during the 2004-05 and 2005-06 extended school years and reimbursement for continued provision of SEIT providers to petitioners' child during the 2005-06 school extended year is supported by equitable considerations. Given the apparent discrepancy in the record regarding the reimbursement amount pertaining to the SEIT supervisor's services for the period of September 2004 through March 2005, I will remand this matter to the impartial hearing officer solely for clarification and a determination of whether my award of reimbursement should be reduced by $10,512.38 due to a miscalculation in the amount of payments made by petitioners. In lieu of returning to an impartial hearing, I encourage the parties to resolve by settlement the discrepancy involving proof of payment. Respondents shall reimburse petitioners only upon submission of proof of payment made by petitioners.4 I have considered petitioners' remaining contentions and I find them to be without merit.
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that the impartial hearing officer's decision is hereby annulled, and;
IT IS FURTHER ORDERED that respondent shall reimburse petitioners for the cost of the child's SEIT supervisor services for the 2004-05 and 2005-06 extended school years, at no more than current levels, upon petitioners' presentation to respondent of proof of such payment; and
IT IS FURTHER ORDERED that, unless the parties otherwise agree, this matter be remanded within 30 days to the impartial hearing officer below, or to another impartial hearing officer if she is not available, for another hearing solely for a determination of whether the award of reimbursement requested by petitioners for the SEIT supervisors services in the amount of $21,026.26 should be reduced by the amount of $10,512.38 for services between September 2004 through March 2005; and
IT IS FURTHER ORDERED, that respondent shall reimburse petitioners for the cost of the child's SEIT services for the 2005-06 extended school year, at no more than current levels, upon petitioners' presentation to respondent of proof of such payment.
1 By decision dated September 3, 2005, the impartial hearing officer reportedly ordered that, "Pursuant to the current law, the Impartial Hearing Officer's Decision dated April 19, 2004 is the pendency placement and services" (Pet. ¶ 18). The September 3, 2005 impartial hearing officer decision has not been made a part of the record.
2 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) meets the stands 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) (see 34 C.F.R. § 300.13; 20 U.S.C. § 1414[d]).
3 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 [IDEA 2004], 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 IDEA 2004 do not apply.
4 Petitioners are cautioned to be accurate in identifying costs for services as part of a reimbursement claim. Petitioners are also cautioned to provide an accurate description of services provided as part of any reimbursement claim.