Application of a CHILD WITH A DISABILITY, by his parent, for review of a determination of a hearing officer relating to the provision of educational services by the Department of Education of the City of New York
Hon. Michael A. Cardozo, Corporation Counsel, attorney for respondent, Duncan Peterson, Esq., of counsel
Petitioner appeals from that part of the decision of an impartial hearing officer which denied her request to be fully reimbursed for her son's tuition costs at the Jewish Foundation School (JFS) for the 2005-2006 school year. The appeal must be dismissed.
At the commencement of the impartial hearing in August 2005, petitioner's son was eight years old and had completed third grade in a ten-month day program at JFS, where he had been unilaterally placed by his parents (Dist. Ex. 9 at p. 1, Parent Ex. A; Tr. p. 148). When the impartial hearing concluded on November 1, 2005, the child was nine years old and attending third and fourth grade classes at JFS (Tr. pp. 326, 474-75). JFS 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, 200.1[d]).
Administration of the Stanford-Binet Intelligence Scale, Fifth Edition during a November 2004 psychoeducational evaluation indicated that the child's cognitive abilities were in the average range, with significant subtest variability, including sensory motor and multistep processing deficits (Dist. Ex. 9 at p. 2). Academic assessments in June 2005 indicated that petitioner's son was performing in the average range in reading and math, and demonstrated an overall fund of academic knowledge at the 71st percentile (Dist. Ex. 9 at p. 15). He was diagnosed with Asperger's disorder in 2002 (Parent Ex. JJ at p. 3) and with Pervasive Developmental Disorder – Not Otherwise Specified (PDD-NOS) in 2005 (Dist. Ex. 9 at p. 1). The child has a history of behavior difficulties and placements in various community schools and special education programs (Parent Ex. W at p. 5). His eligibility for special education programs and services as a child with autism (see 8 NYCRR 200.1[zz]) is not in dispute.
At some point in 2003, respondent's Committee on Special Education (CSE) placed the child into the David Gregory School (DGS) on an emergency interim placement basis (Parent Exs. AA, O, DD; Dist. Exs. 23; Tr. p. 212). For the 2004-05 school year, respondent's CSE recommended that the child remain at DGS (Parent Ex. AA at p. 1). He attended DGS until December 23, 2004, when petitioner removed him and placed him at JFS. She advised respondent that although her son's academic needs were being met at DGS, his social and emotional development was being compromised by the lack of intellectual challenge in that school setting (Parent Ex. W at p. 2).
The CSE convened on January 11, 2005 to discuss a new placement for the child (Dist. Exs. F, G), and recommended a 12-month placement in a specialized school setting with various related services, and deferred placement of the child to its Central Based Support Team (CBST). The CBST is responsible for sending referral packets to approved private schools (Parent Ex. F at pp. 2, 19; Tr. p. 190). Pending location of an appropriate placement for petitioner's son, the CSE developed an Interim Service Plan (ISP), recommending that the child receive his recommended related services at JFS, where petitioner had arranged for his placement. The CSE also recommended that the child receive 12 periods per week of direct instruction through Special Education Teacher Support Services (SETSS) (Parent Exs. F, G).
Referral packets were sent by the CBST to 12 residential schools (Tr. p. 216). However, petitioner rejected placement of her son in either a day or residential program at any approved school and the referral process was halted (Dist. Ex. 8, p. 7). Petitioner requested an impartial hearing seeking reimbursement for tuition and expenses for the portion of the 2004-05 school year that the child attended JFS (Dist. Ex. 8 at p. 4). In a decision dated June 2, 2005, the impartial hearing officer denied petitioner's request for tuition reimbursement for JFS and directed respondent's CSE to identify a placement for the child in a day program with staff who have the training and expertise to address the needs of high functioning students with autism (Dist. Ex. 8 at p. 13). The impartial hearing officer ordered, inter alia, that respondent identify three to five placement options for petitioner to review for the 2005-06 school year and reconvene the CSE to develop an IEP which would only recommend day programs (id.). Neither party appealed this decision.
The CSE convened on June 2, 2005, to address a matter unrelated to the impartial hearing officer's decision which was also rendered on June 2, 2005 (Tr. p. 99). Petitioner had informally requested that her son be provided a one-to-one aide while he attended a "sleep away" camp during summer 2005 (Tr. pp. 99, 112, 126). She was reportedly advised that an aide could be provided, and that she would not be required to attend the meeting. The IEP developed by the June 2, 2005 CSE recommended that the child receive the services of a "crisis management paraprofessional" (Dist. Ex. 5 at p. 19) and noted that the child was a "serious emotional (sic) disturbed youngster with poor impulse control, limited social skills, aggression towards others and aggression towards himself" (Dist. Ex. 5 at p. 5). The CSE also recommended that the child receive counseling during his summer camp, and that he also receive 16 occupational therapy sessions (Tr. p. 137). The record reveals that respondent arranged for these services to be provided in summer 2005 by persons who were chosen by petitioner (Tr. pp. 133-37).
For the 2005-06 school year, the June 2, 2005 CSE recommended that the child be placed in a 12:1+1 special education class in a specialized school and receive related services of speech-language therapy and counseling (Dist. Ex. 5 at pp. 17, 19). The CSE deferred the case to the CBST for identification of a day program (Tr. p. 105).
On June 27, 2005, another CSE was convened, and a new IEP was developed in order to comply with the impartial hearing officer's June 2, 2005 decision (Tr. pp. 279-80). The CSE again recommended that a placement for the child be identified by the CBST, indicating on the child's IEP that he required a "day program in a therapeutic setting with related service" (Dist Ex. 3 at pp. 1, 3). The CSE also prepared an ISP for the child, pending identification of a placement in a day program, recommending that he receive speech-language therapy, counseling, occupational therapy and SETSS services while attending a general education program (Dist. Ex. 6). The CSE also recommended that the child receive the services of a one-to-one crisis management paraprofessional while he attended the general education program (id.).
The record reveals that referral information was sent to various programs by the CBST, and that the petitioner engaged in discussions with representatives from several of the programs to which her son was referred (Tr. pp. 265, 300-01). However, petitioner rejected opportunities to pursue any of the placements identified by the CBST, indicating that her son was able to function successfully in a general education setting with appropriate supports and that he did not require a therapeutic setting (Tr. pp. 284, 286-87).
Petitioner requested an impartial hearing on July 12, 2005 and amended her request on July 14, 2005. She requested the impartial hearing to, among other things, seek tuition reimbursement for the 2004-05 school year at JFS, challenge the June 27, 2005 IEP, and seek placement for her son at JFS for the 2005-06 school year.
The impartial hearing began on August 4, 2005, continued on August 19, September 13, and concluded on November 1, 2005. The impartial hearing officer rendered his decision on January 18, 2006. He found that the June 27, 2005 CSE was improperly composed and that the resulting IEP did not contain goals and objectives sufficient to provide an educational benefit. Accordingly, he found that the June 27, 2005 IEP was invalid. He ordered respondent to reimburse petitioner for the general education tuition and meals at JFS for 2005-06. Respondent does not appeal or cross-appeal from the impartial hearing officer's decision.
On appeal, petitioner contends that the impartial hearing officer erred when he denied full tuition reimbursement. A purpose behind the Individuals with Disabilities Education Act (IDEA)1 (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]; Schaffer v. Weast, 126 S. Ct. 528 ; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). 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 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 ). 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 (Carter, 510 U.S. at 14).
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).
As noted above, the impartial hearing officer found that the June 27, 2005 IEP was invalid. Because respondent does not appeal or cross-appeal from this finding, petitioner has prevailed with respect to the first criterion for an award of tuition reimbursement.3
With respect to the second criterion for an award of tuition reimbursement, petitioner must show that the services provided by JFS were appropriate (Burlington, 471 U.S. at 370). The record shows that the child's cognitive abilities are in the average range and he has a history of behavior difficulties (Dist. Ex. 9). He also has been diagnosed as having Asperger's disorder and a PDD-NOS (id.).
JFS is, by admission of the school's principal, a general education institution that does not offer any special education programs. (Tr. p. 160-61). For the 2005-06 school year at JFS, the child was in a general education setting, in classes with 14 to 15 other students (Tr. p. 165). Petitioner testified that her son is at school each day from 8:00 am to 5:30 pm (Tr. p. 418) and acknowledged that the child's school day is longer than that of a typical public school child (Tr. p. 341). In testimony, the JFS principal indicated that tuition for petitioner's son was substantially higher than the standard tuition for general education students because JFS was providing petitioner's son with services that were not provided to other students (Tr. pp. 171, 489) and because "I had to extend many of the hours of the people who work for me to accommodate [the child]" (Tr. p. 172).
The JFS principal estimated that the child spent approximately 80 percent of his day in the general education setting, and received one-to-one instruction for the remaining portion of the day (Tr. pp. 474-75). The JFS principal testified that, during the 2005-06 school year, the child was attending fourth grade classes daily from 8:00 am until 12:30 pm (Tr. pp. 474-75, 479-80). After lunch, petitioner's son attends third grade Hebrew classes for approximately two hours, where he receives one-to-one instruction in Hebrew reading and conversation, followed by a one-hour period from 3:30 to 4:30 when he does his homework with his one-to-one paraprofessional (Tr. pp. 479-80). The JFS principal later clarified his statement regarding the child one-to-one instruction in Hebrew, indicating that the child was in fact in a mainstream third grade class during that time, but that "He's in and out and he gets a lot of individual instruction at that point" (Tr. p. 498).
The JFS principal further testified that, in addition to the individual instruction that the child receives in Hebrew reading and conversation, petitioner's son requires adult supervision at all times (Tr. pp. 478, 496). However, he acknowledged that special education support services of SETSS instruction and related services were provided to the child by respondent (Tr. pp. 158, 163, 490) and that, with the exception of occasional breaks, the child's paraprofessional was responsible for providing full time adult supervision (Tr. p. 506).
It is not clear from the record what special education services JFS is providing to petitioner's son. Direct instruction (SETSS), related services and a one-to-one aide are provided by respondent (Tr. pp. 158, 163, 490, 506). The JFS principal submitted two lists which were described as cost breakdowns, but neither of these documents provided clarification regarding the extra services provided or the extra staff time required (Dist. Exs. 11, 12). On the list generated in March 2005, the JFS principal included fees for special education instruction by individuals who were provided by respondent, and later indicated that these individuals were to be reimbursed at a rate higher than the rate offered by respondent (Dist. Ex. 11; Tr. p. 412).
On the September 2005 cost breakdown, the JFS principal listed two instructors, for "Special Ed. Reading" and "Hebrew Language" provided by individuals whom he indicated in testimony worked exclusively with petitioner's son, suggesting that these individuals were provided by respondent, but the daily rates listed for these individuals do not include an hourly rate (Dist. Ex. 12; Tr. pp. 179-81). The March 2005 document lists "Administrative Costs" at the hourly wage of $125.00 for 30 minutes per day (Dist. Ex. 11), for services provided by the JFS principal, who indicated in testimony that as an administrator he spent "a disproportionate amount of time" addressing the child's "particular needs" (Tr. p. 489). On the September 8 cost breakdown, developed approximately two months before the JFS principal testified regarding his administrative involvement, the daily fee for "Administrative Costs" is ten dollars (Dist. Ex. 12).
The JFS principal also testified that the child required counseling "on a regular basis which we provide for him here in school" and indicated that JFS staff included both a psychologist and a social worker who met with the child as needed (Tr. p. 489). The child's mother testified that JFS provided daily counseling sessions to her son for 30 to 45 minutes per day (Tr. p. 412). Neither of these statements is consistent with the cost breakdowns provided by the JFS principal, which lists no counseling services. Additionally, I note that the counseling services of three 30-minute sessions provided by respondent are delivered to the child at home, in one 90-minute session per week, by a psychologist who testified that he addresses the child's frustration tolerance by working with him one-to-one while the child does his homework, and addresses socialization deficits by discussing with his mother how the child might "improve behavior at school" (Tr. pp. 520, 522). This psychologist also testified that he had not worked with the child at JFS and had not coordinated his services with JFS staff (Tr. pp. 526-27).
I find that petitioner failed to provide any information supporting her claim that JFS provided special education services for which she is entitled to reimbursement (Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 660). Both petitioner and the JFS principal, testified at length regarding the individualized supervision and instruction which the child was receiving in 2005-06, but offered no description or documentation which would lead me to conclude that JFS is providing special education services in excess of those services provided by respondent.
Based upon the foregoing, I find that petitioner failed to meet her burden of proof under the second Burlington criterion for an award of tuition reimbursement beyond what was ordered by the impartial hearing officer. As such, the necessary inquiry is at an end (Mrs. C. v. Voluntown Bd. of Educ., 226 F.3d 60, 66 [2d Cir. 2000]; Walczak, 142 F.3d at 134; Application of a Child with a Disability, Appeal No. 05-039).
THE APPEAL IS DISMISSED.
1 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). As the relevant events in the instant appeal took place after the effective date of the 2004 amendments, the provisions of the IDEA 2004apply and the citations contained in this decision are to the newly amended statute.
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 Respondent also does not appeal or cross-appeal the impartial hearing officer's award of partial tuition reimbursement to petitioner.