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 New York City Department of Education
Hon. Michael A. Cardozo, Corporation Counsel, attorney for respondent, Huria S. Naviwala, of counsel
Petitioner appeals from the decision of an impartial hearing officer, which denied petitioner's request for funding of her son's tuition costs at St. Cecilia's School (St. Cecilia's) for the 2005-06 school year. The appeal must be dismissed.
When the impartial hearing was held on March 31, 2006, the student was 15 years old and in the eighth grade at St. Cecilia's, a parochial school in Brooklyn, New York, where he had been unilaterally placed by his mother in March 2004 (Parent Ex. G; Dist. Ex. 1; Tr. pp. 3, 11), and he was receiving counseling, occupational and physical therapy outside of school (Parent Exs. C, E, F; Tr. pp. 40-41). The Commissioner of Education has not approved St. Cecilia's as a school with which school districts may contract to instruct students with disabilities (see 8 NYCRR 200.7, 200.1[d]).
In 1996, the student was diagnosed with an attention deficit hyperactivity disorder (ADHD) (Parent Ex. F at p. 1). A 2004 neurodevelopmental consultation report identified multiple learning disabilities affecting the student's processing skills (id. at p. 4). Administration of the Clinical Evaluation of Language Fundamentals - Third Edition (CELF-3) during a speech-language evaluation conducted in November 2003 when the student was 12 years old yielded subtest scores in the first percentile on all measures of receptive and expressive language, resulting in a language age equivalent of five years (Parent Ex. E at p. 2). A psychoeducational evaluation conducted in April 2005, when the student was 14 years old, included administration of the Wechsler Intelligence Scale for Children, Fourth Edition (WISC-IV), yielded a full scale IQ score in the borderline range of cognitive functioning (Dist. Ex. 2 at p. 7). Administration of the Wechsler Individual Achievement Test (WIAT) that same month yielded a reading comprehension subtest score in the 23rd percentile (grade equivalent score 7.0); all other subtest scores on the WIAT were below the tenth percentile (Dist. Ex. 1 at p. 4).
On June 16, 2005, respondent's Committee on Special Education (CSE) convened for the student's annual review and to develop his 2005-06 individualized education program (IEP) (Dist. Ex. 1 at p. 1). The CSE changed the student's classification from a student with a speech impairment to a student with a learning disability (Dist. Ex. 1 at p. 1; Tr. pp. 42-43; see 8 NYCRR 200.1[zz]). The CSE recommended a special class with a 12:1 staffing ratio and related services of counseling, occupational therapy (OT), physical therapy (PT), and speech-language therapy (Dist. Ex. 1 at pp. 1, 17). The record indicates that respondent did not recommend a specific school placement for the 2005-06 school year.
Petitioner filed a due process complaint dated February 16, 2006, requesting an impartial hearing and payment of her son's tuition costs at St. Cecilia's for the 2005-06 school year (Dist. Ex. 4). By decision dated April 25, 2006, the impartial hearing officer found that petitioner failed to prove that St. Cecilia's provided an appropriate program for her son, and denied petitioner's request for funding of her son's tuition costs at St. Cecilia's for the 2005-06 school year (IHO Decision, pp. 4-6). The impartial hearing officer found that respondent conceded that it did not offer petitioner's son a free appropriate public education (FAPE) for the 2005-06 school year (id. at p. 3). The impartial hearing officer also determined that petitioner did not raise any concerns in her due process complaint about the student's change in classification or the educational program developed by respondent's CSE in June 2005, and therefore, although petitioner indicated some dissatisfaction with the student's change in classification and educational program at the impartial hearing (see Tr. pp. 41-46), such concerns were not properly before him (IHO Decision, p. 3).
On appeal, petitioner contends that the impartial hearing officer erred in finding that St. Cecilia's was not an appropriate placement for her son, arguing that the student has made academic and social progress at St. Cecilia's. Petitioner also contends that she is entitled to funding for her son's tuition costs because respondent failed to offer the student a FAPE, the placement at St. Cecilia's is appropriate, and an impartial hearing officer awarded petitioner funding for her son's tuition costs at St. Cecilia's for the prior 2004-05 school year therefore she asserts that her request for payment of her son's tuition costs for the 2005-06 school year should be granted "as per pendency". On appeal, petitioner does not dispute the student's classification as a student with a learning disability or raise any issues about the student's educational program developed by respondent's CSE in June 2005. Respondent contends that the decision of the impartial hearing officer should be upheld in all respects and requests that petitioner's appeal be dismissed in its entirety.
One of the main purposes of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400 - 1487)1 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, 531 ). 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; 34 C.F.R. § 300.13; see 20 U.S.C. § 1414[d]; 34 C.F.R. § 300.347).2 "The core of the statute" is the collaborative process between parents and schools, primarily through the IEP process (see Schaffer, 126 S.Ct. at 532).
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 parents' 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 (Burlington, 471 U.S. at 370-71). "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" (id. at pp. 370-71).
The record clearly supports the impartial hearing officer's finding that respondent conceded that it did not offer petitioner's son a FAPE for the 2005-06 school year (IHO Decision, p. 3; Tr. pp. 6-7, 46). I concur with the impartial hearing officer that petitioner therefore has prevailed with respect to the first Burlington/Carter criterion for an award of her son's tuition costs at St. Cecilia's for the 2005-06 school year.
I must now consider whether petitioner met her burden of proving the appropriateness of her placement of the student at St. Cecilia's (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, respondent 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 student's special education needs (Application of a Child with a Disability, Appeal No. 01-010). A 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). The private school need not employ certified special education teachers or have its own IEP for the student (Carter, 510 U.S. at 7; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-105).
Petitioner placed her son at St. Cecilia's on March 22, 2004 (Parent Ex. G) because of her concerns regarding her son's difficulty in social skills, and his poor academic performance and its effect on his self-esteem (Parent Ex. D). In a letter dated April 21, 2004, the student's private psychologist recommended St. Cecilia's, indicating that the school offered "more individual attention to his specific academic needs…with other children at his level…more appropriate peer interactions" (Parent Ex. D at p. 2). During the remaining months of the 2003-04 school year, the student received special education instruction in math, reading and language arts at St. Cecilia's in a class of approximately 20 students and received "Corrective Reading" once per week in a group of 10 students (Parent Ex. G). At the impartial hearing giving rise to this appeal, the principal of St. Cecilia's testified that during the 2005-06 school year, the student was taught by a regular education teacher for all classes except science, and that his homeroom teacher was a special education teacher (Tr. p. 17). However, there is no information in the record describing how the student's needs related to his disabilities were addressed by the program at St. Cecilia's beyond references by both St. Cecilia's principal and the student's social studies teacher to providing "watered down" materials to the student so he could understand them (Tr. pp. 18, 30).
There is no information in the record describing the services provided in Corrective Reading or giving any indication that this service continued in 2005-06. The student's social studies teacher testified that the student received Title I remedial reading services (Tr. p. 33), which is not a special education service, and the record does not indicate whether Corrective Reading is a separate program or anther name for remedial reading. The student's social studies teacher testified that the student was able to decode the textbook (Tr. p. 30). The record does not indicate whether the textbook in use was at grade level. Results of recent standardized testing of the student yielded a subtest score for decoding at the first percentile (grade equivalent 1.7) (see Dist. Ex. 1 at p. 4) suggesting that the student would not be able to read a grade level text, yet the student's teacher observed that petitioner's son could decode and comprehend the text but that his classmates were reading "on a second or third grade level" (Tr. p. 30).
Shortly before she placed her son at St. Cecilia's in March 2004, petitioner received a recommendation from a developmental pediatrician at Schneider Children's Center for the student's placement at the school, which noted that St. Cecilia's was "reported to specialize in learning disabled children and Attention Deficit Hyperactivity Disorder" (Parent Ex. F at pp. 5-6). The student's social studies teacher testified that petitioner's son "sometimes gazes off" (Tr. p. 25). His second quarter report card from eighth grade includes a notation that the student needs to "stop talking in class" (Parent Ex. A). However, there is no information in the record describing how the student's ADHD is addressed at St. Cecilia's during the 2005-06 school year. In an earlier report from Schneider's Hospital completed in August 2003, a developmental pediatrician recommended that the student receive accommodations of preferential seating, time and a half for testing, and reduction of distractions (Parent Ex. F at p. 4). A May 21, 2004 PT/OT progress report indicated that the student requires a quiet, organized classroom, stating that "the calmer the classroom, the better [the student] can learn" (Parent Ex. C at p. 2). Testimony by the principal and one of the teachers at St. Cecilia's does not indicate whether these recommended accommodations were in place for the 2005-06 school year and in addition, their statements suggest that the school may not be an environment in which distractions are at a minimum (Tr. p. 37).
The record does not indicate that the student is placed with other students who are at his level cognitively or emotionally. Petitioner testified that her son was placed in a "regular class with other children" (Tr. p. 11). The student's social studies teacher described petitioner's son as "average" when compared to other students in her class (Tr. p. 25), yet she also testified that many students in the class were "much more lower functioning" than the student (Tr. p. 30). I am concerned about this same teacher's testimony that the student was able to decode and comprehend texts in his class (id.). Cognitive testing indicates that the student's intellectual capacity is in the borderline range (Dist. Ex. 2 at p. 7) and recent academic testing yielded scores at the first percentile in decoding and in the 23rd percentile in reading comprehension (Dist. Ex. 1 at p. 4). The social studies teacher's descriptions of the student's performance suggest a lack of understanding of the student's current performance levels and indicate that St. Cecilia's does not offer a program which has adequately identified the student's strengths and needs.
Staff at St Cecilia's indicated that the student demonstrated improvement in both academics and socialization, and his mother opined that her son was much happier in the parochial school, but the record reveals that the student continued to experience difficulties in areas related to socialization (Parent Ex. A; Tr. pp. 11, 15-19, 24). It is not clear from the record that the program at St. Cecilia's addresses the student's social/emotional needs, particularly his behavioral needs, or even that these needs are fully understood. The student's social studies teacher's comments regarding behavior related only to the student's medication and how it helped control his behavior (Tr. pp. 27, 29), but she did not indicate that anything within the structure of his program addresses this need.
The student has a history of difficulty in social skills (Parent Exs. E at p. 2, F at p. 5; Tr. pp. 15, 18), of having difficulty initiating social interaction (Dist. Exs. 1 at p. 6; 2 at p. 6), and of being teased by classmates (Parent Exs. C at p. 2, F at pp. 1, 5-6). The student's social studies teacher indicated that the student continued to have difficulty with peer relationships and that he had appeared to have made one friend in the classroom (Tr. p. 24). The St. Cecilia's principal testified that she had observed the student's behavior on the playground and that his interaction in social settings was "much better than it was" but also noted that his mannerisms were not age appropriate (Tr. pp. 15, 18). She further testified that the student had come to be accepted by his classmates, and opined that petitioner's son needed to be "accepted for who he is" (id.). While this testimony suggests that St. Cecilia's is providing the student with a supportive and accepting environment that would benefit his self-esteem, the principal did not provide insight into the strategies that are employed to address the student's difficulty with social interaction.
Based on the foregoing, the record lacks sufficient information regarding the services provided during the 2005-06 school year to demonstrate that the program met the student's special education needs at that time. I concur with the impartial hearing officer that petitioner has not demonstrated that the services provided by St. Cecilia's were appropriate, and, therefore, the second criterion of the Burlington/Carter analysis has not been met (see Burlington, 471 U.S. 359; Application of a Child with a Disability, Appeal No. 06-014; Application of a Child with a Disability, Appeal No. 05-124; Application of a Child with a Disability, Appeal No. 05-119; Application of a Child with a Disability, Appeal No. 04-028). Having so found, I need not determine whether the equities weigh in favor of petitioner, the third prong of the Burlington/Carter analysis (Application of a Child with a Disability, Appeal No. 05-119; Application of a Child with a Disability, Appeal No. 03-097; Application of the Bd. of Educ., Appeal No. 01-014).
I have considered petitioner's remaining contentions and find them to be without merit.3
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). The relevant events in the instant appeal relating to the development and substance of the June 16, 2005 IEP took place prior to the effective date of the 2004 amendments to the IDEA, therefore, the provisions of the IDEA 2004 do not apply to the development or substance of the IEP. Regarding the due process hearing request and the impartial hearing, the newly amended provisions of IDEA 2004 apply because the due process hearing request was made on February 16, 2006 and the impartial hearing occurred on March 31, 2006.
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) 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).
3 To the extent that petitioner attempts to raise the issue of pendency on this appeal, I note that the issue has not been properly raised in an impartial due process hearing request; there is no indication that petitioner raised any issue about the student's pendency during the impartial hearing that gave rise to this appeal; and the prior decision dated June 23, 2005 from an impartial hearing officer did not expressly find that St. Cecilia's was an appropriate placement. I also note that the jurisdiction of a State Review Officer is limited to review of a determination of an impartial hearing officer, and in the instant case, no determination has been made regarding pendency (see N.Y. Educ. Law § 4404; 8 NYCRR 200.5[k]; 8 NYCRR 279.10[d]). For these reasons, I find that the issue of pendency is not properly before me.
20 U.S.C. § 1401(9)