95-41

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 Board of Education of the City School District of the City of Rochester

Appearances:

Louis N. Kash, Esq., attorney for respondent, Donald T. Schmitt, Esq., of counsel

 

DECISION

 

Petitioners appeal from the decision of an impartial hearing officer which found that respondent's committee on special education (CSE) had recommended an appropriate educational program for petitioners' son for the 1993-94 and 1994-95 school years, and which denied petitioners' request for an order requiring respondent to reimburse them for their expenditures for the child's tuition at two private schools during those school years. Petitioners' appeal from the hearing officer's decision must be dismissed.

Petitioners' son is fifteen years old, and was in the eighth grade during the 1994-95 school year. At the age of three, the child began receiving speech/language therapy to improve his speech articulation skills. He attended a private school for preschool. In September, 1985, the child entered kindergarten in respondent's School No. 7. He remained in School No. 7 through the sixth grade, which was completed in the 1991-92 school year. The child was referred to the CSE by his kindergarten teacher because the child had difficulty expressing himself and comprehending oral directions. In February, 1986, the CSE recommended that the child be classified as speech impaired, and that he receive speech/language therapy three times per week to improve the rate and fluency of his speech. The child was reportedly successful both academically and socially in kindergarten.

In October, 1986 while in the first grade, the child was referred by his teacher to the CSE because of his difficulty in paying attention in class and retaining information, as well as his below grade level reading skills. A psychologist, who had evaluated the child in November, 1986, reported that the child achieved a verbal IQ score of 102, a performance IQ score of 78, and a full scale IQ score of 89. The child exhibited deficits in his visual motor integration and eye-hand coordination skills. His scores on individually administered reading and mathematics achievement tests were at the first grade level. In January, 1987, the CSE recommended that the child's progress be closely monitored, but found that he did not require additional special education services.

Shortly thereafter, the child was privately evaluated at the Genesee Hospital. A neurological examination revealed that the child had some "soft" signs of a neurological disorder, such as an awkward pencil grasp and awkward spontaneous movements. However, the results of the examination were reported to be normal. Despite having generally appropriate academic skills, the child was found by the evaluation team at the Genesee Hospital to have deficits in his visual motor integration, auditory processing, and word sequencing skills, which were believed to have been caused in part by an attention deficit disorder (ADD). The child began to receive Ritalin, a medication used with children who have ADD, and has continued to use that medication.

The CSE, which conducted the child's annual review in March, 1987, recommended that the child remain classified as speech impaired, and that he continue to receive speech/language therapy for the second grade during the 1987-88 school year. The results of standardized tests administered to the child near the end of the first grade indicated that he had grade appropriate reading and mathematics skills. A private tutor, who began working with the child in March, 1987, reported that the child's reading and mathematics skills were at the second grade level by the time he entered the second grade.

In the second grade, during the 1987-88 school year, the child received the grade of "B" or "C" for each subject on his report card. His reading skills were at the 47th percentile and his mathematics skills were at the 84th percentile, as measured by standardized tests which were administered to him near the end of the second grade. He reportedly achieved a number of the instructional objectives on his individualized education program (IEP). The child was not privately tutored during the school year, but was tutored during the Summer of 1988.

For the third grade, during the 1988-89 school year, the CSE recommended that the child remain in regular education classes and continue to receive speech/language therapy. The child reportedly achieved a "C" in each of his subjects, except physical education in which he received a "B". The child continued to demonstrate satisfactory growth in his reading and mathematics skills, as reflected by his standardized test scores at the 56th and 84th percentiles in reading and mathematics, respectively. In a speech/language evaluation performed in May, 1989, the child achieved standard scores of 83 in receptive language and 95 in expressive language. The record reveals that he passed the New York State Pupil Evaluation Program third grade reading and mathematics tests.

The child remained in a regular education class, with speech/language therapy, for the fourth grade during the 1989-90 school year. His triennial evaluation, which was conducted in the Fall of 1989, included a psychological evaluation in which the child achieved a verbal IQ score of 92, a performance score of 72, and a full scale IQ score of 81. The evaluator noted that the child was easily distracted, and displayed weaknesses in performing timed visual motor tasks. He also exhibited a significant weakness in long term memory skills. The child was described as socially immature and withdrawn from his peers, but with a good attitude towards school. In a speech/language evaluation the child's speech articulation and fluency skills were within normal limits. He was described as slow to process what he hears, and to have relative stronger expressive, than receptive, language skills. The speech/language evaluator also described the child as having a moderate communication problem, which could be addressed by receiving speech/language twice per week. On academic achievement tests, the child achieved grade equivalent scores of 7.1 in word identification, 2.6 in passage comprehension, 4.3 in mathematical computation, and 3.3 in language dictation (spelling and punctuation). The child's writing fluency skills were found to be at a 3.1 grade equivalent, while his handwriting skills were at a 2.0 grade equivalent. The child displayed poor skill in crossing the mid-line during an occupational therapy evaluation. The child's fourth grade teacher informed the CSE that the child required various grading modifications.

In December, 1989, the CSE recommended that the child's classification be changed to learning disabled, but that he remain in a regular education class. It also recommended that the child's speech/language therapy be increased from three times to five times per week, and that the child receive occupational therapy twice per week. The CSE also adopted the recommendation for modifications which the child's teacher had made. In March, 1990, the child's physician asked the CSE to discontinue the child's occupational therapy because it reportedly upset the child. The CSE recommended that occupational therapy be discontinued. The child reportedly received the grade of "D+" in social studies, and "C" in all of his other academic subjects in the fourth grade. On standardized group administered achievement tests, the child's reading skills were reported to be at the 50th percentile, and his mathematics skills were at the 67th percentile.

In May, 1990, the CSE recommended that the child remain classified as learning disabled and attend a regular education fifth grade class during the 1990-91 school year. In April, 1991, the child's IEP was amended to provide for the child to have access to a word processor because of concerns about his poor handwriting. He received the grade of "B" in mathematics and spelling, and the grade of "C" in the remainder of his academic subjects during the 1990-91 school year. His mathematics skills were reported to be the 98th percentile, but there is no record of his performance on standardized reading tests during the fifth grade. The child achieved the minimum passing score on the New York State Pupil Evaluation Program fifth grade writing test.

For the sixth grade during the 1991-92 school year, the CSE recommended no change in the child's classification or placement in the regular education program. It recommended that the child receive individual speech/language therapy twice per week, and small group speech/language therapy three times per week. It again recommended that the child have extended time to complete tests, revised test directions, the assistance of a scribe or note taker, and the use of a word processor. In April, 1992, the child's speech/language therapist reported that the child was on grade level, but was struggling to learn the information presented to him in class. She noted that the child would have to rely more heavily on notes taken in class as he moved into the middle school for the 1992-93 school year, and recommended that the child have the assistance of a note taker, access to his teacher's notes, and the use of a tape recorder to record his lessons. In May, 1992, the child passed the Pupil Evaluation Program sixth grade mathematics test, but he did not pass the Pupil Evaluation Program sixth grade reading test. The child received the grade of "C+" in language arts, writing, and spelling, and the grade of "C" in the remainder of his academic subjects for the sixth grade.

In April, 1992, the CSE recommended that the child remain classified as learning disabled, and that he be enrolled in a regular education seventh grade class in one of respondent's middle schools for the 1992-93 school year. Petitioners did not accept the CSE's recommendation, and unilaterally placed the child in Nazareth Hall, a local private school which provided small sized classes and a regular education program.

The child was scheduled to receive a triennial evaluation during the 1992-93 school year. However, before respondent could perform its evaluation, petitioners had the child evaluated at the Genesee Hospital during the Summer of 1992. The child achieved a verbal IQ score of 82, a performance IQ score of 58, and a full scale IQ score of 68. The evaluator commented that the child's full scale IQ score did not accurately reflect the child's ability, because it had been significantly affected by his low performance score. The evaluator opined that the child appeared to be a severely disabled youngster who was age appropriate with respect to his functional and adaptive behavior. The psychologist noted that the child exhibited approximately a 6-year delay in his visual motor integration skills, which was directly relevant to his poor handwriting skills. The psychologist opined that the child exhibited the symptoms of an attention deficit hyperactivity disorder. A pediatrician who performed a neurological evaluation of the child reported that the child continued to display difficulties with his fine motor coordination and motor planning skills, as well as mild speech articulation difficulties. The pediatrician also noted that child processed information very slowly. An educational evaluator at the Genesee Hospital reported that the child would independently read a passage at the seventh grade level, but that his reading rate was slow. The child received age appropriate scores in mathematics and spelling. The child's written expression was described as an area of significant weakness for him. His poor vocabulary and syntactical writing skills was described as language related weaknesses by the evaluator, who recommended that the child use a word processor and special techniques to aid his organization and writing cohesiveness. In a subsequent speech/language evaluation at the Genesee Hospital, the child exhibited approximately a three-year delay in his receptive language skills, while his expressive language skills were reported to be at the 14th percentile.

In view of the recent private evaluations, respondent's staff supplemented those evaluations, rather than perform full evaluations, for the child's triennial evaluation. The CSE reviewed the evaluation results in November, 1992, when it recommended that the child remain classified as learning disabled. The CSE reduced the frequency of the child's speech/language therapy to three times per week to accommodate the child's schedule at Nazareth Hall.

In January, 1993, petitioners referred the child to the CSE because the child was reportedly overwhelmed by his program at Nazareth Hall. With the exception of one "C" in reading and one "F" in language arts, the child received all "D's" during the first two quarters of the 1992-93 school year at Nazareth Hall. Four of his teachers indicated on the child's report card that the child was exerting little effort in his work during the second quarter, although petitioners informed the CSE that the child worked hard at home and in school. In March, 1993, the CSE met with petitioners and representatives of Nazareth Hall and Genesee Hospital to review the child's evaluations, and to consider petitioners' request that the child be placed in the Norman Howard School, a local private school which has been approved by the State Education Department to provide special education to children with disabilities. The CSE did not reach a decision, but agreed to meet again in April, 1993. In the interim, the child's physician wrote to the CSE in support of petitioners' request that the child be placed in the Norman Howard School, but did not offer an explanation for his opinion that the child "would benefit" from such placement.

In April, 1993, the CSE recommended that the child continue to be classified as learning disabled and be enrolled in a self-contained "Option 1" special education class in respondent's Nathaniel Rochester Middle School for the 1993-94 school year. The CSE recommended that the child be mainstreamed, i.e., attend regular education classes, for "exploratory" subjects and for physical education. It also recommended that the child receive group speech/language therapy three times per week, and an annual audiological evaluation because the child had a perforated right eardrum. The child's IEP provided that he would have the use of a word processor, tape recorder, and class notes prepared by others. The minutes of the CSE meeting reveal that the child was also to receive books on tapes.

By letter dated May 10, 1993, petitioners asked for another CSE meeting, and specified the individuals whom they wished to have serve as the CSE chairperson and the parent member of the CSE. The CSE met with petitioners on June 15, 1993, to consider petitioners' concerns about the child's proposed placement in a self-contained class. The CSE modified the child's IEP for the 1993-94 school year to provide that course material would be provided at grade level, and that strategies to improve the child's reading and note taking abilities would be developed. The CSE also directed that the child not be required to do far point copying, i.e., copy information written on a blackboard, and that the child be allowed to record his answers to test questions in alternative ways. However, the CSE reaffirmed its prior recommendation that the child be placed in a self-contained class.

By letter dated June 15, 1993, petitioners requested that an impartial hearing to review the CSE's recommendation. They also sought to have the Norman Howard School accept the child for admission. On July 13, 1993, the Norman Howard School informed petitioners that its program would not be appropriate for the child because it would not address all of his language based disabilities. An impartial hearing to review the CSE's recommendation for the 1993-94 school year was scheduled to be held on July 15, 1993. However, the hearing was not held, as the parties continued to discuss services which might be provided to the child. In August 1993, the child's mother gave her written consent to have the child placed on home instruction during the pendency of the due process proceedings. However, petitioners subsequently enrolled the child in the Mastery in Learning Program of the St. Charles Borromeo School, a parochial school. In a letter to petitioner, dated December 17, 1993, respondent's attorney referred to a recent telephone conversation in which petitioners had allegedly expressed their satisfaction with the child's placement at the St. Charles Borromeo School. The attorney asserted that he would assume that petitioners no longer wished to have an impartial hearing, unless they informed him to the contrary. Petitioners reportedly did not respond to the attorney's letter.

At the St. Charles Borromeo School, the child repeated the seventh grade in the Mastery in Learning Program, in which he received instruction in the "core" subjects in a group of twelve children. He attended regular-sized classes for Spanish, art, music, and physical education. As described by the child's primary teacher in her testimony at the hearing in this proceeding, the Mastery in Learning Program involved a four-step sequential process for providing information to children in small increments with the goal of having the entire class achieve an 80 percent level of mastery. The New York State curriculum was used in the program, but the amount of detail was reduced. Although samples of the child's written work at the St. Charles Borromeo School are in the record, there is no report card, or other evidence of the child's performance in that school.

In a letter to the CSE, dated March 1, 1994, petitioners asked for a meeting with the CSE to discuss the child's placement for the 1994-95 school year. The CSE required an update to its evaluation of the child. In a psychological evaluation which was performed in April, 1994, the child achieved a score of 97 on a test of his non-verbal intelligence. His standard scores of a test of various aspects of his adaptive behavior ranged from 94 to 103, or within the average range. When tested, the child was completing the seventh grade for the second time. He achieved grade equivalent scores of 8.2 in word-letter identification, 6.2 in passage comprehension, 8.7 in mathematical applications, and 5.4 in writing sample. He exhibited a four-year delay in his visual motor integration skills. The evaluator reported that the child had made some gains in academic skills, self-esteem, organizational skills, and the use of organizational strategies, but opined that the child would continue to need support from a teacher trained to work with learning disabled children. In a speech/language assessment which was completed in May, 1994, the child achieved scores in the average range for his expressive language skills. The evaluator noted that the child used compensatory strategies, and concurred with the recommendation by the child's prior speech-language therapist that the child not be removed from class to receive speech/language therapy.

The CSE, which included the child's teacher from the St. Charles Borromeo School, met with the child's mother on May 6, 1994. In view of what it believed were significantly different past and present test results, the CSE concluded that a complete cognitive and perceptual assessment should be performed to ascertain the extent of the child's perceptual deficits, and the impact which the child's reported anxiety about his academic performance had on his work. The CSE also sought a complete speech/language assessment, a classroom observation, and copies of standardized tests results. Petitioners' request for an independent evaluation was denied as premature, because respondent had not obtained its evaluation. Respondents' attorney informed petitioners' advocate, in a letter dated July 7, 1994, that a hearing would be scheduled to resolve the issue of petitioners' request for an independent evaluation. Although the issue was briefly raised at the hearing in this proceeding, neither party addressed the adequacy of respondent's evaluation.

On July 9, 1994, a subcommittee of the CSE met without either petitioners or the child's teacher in attendance. In this proceeding, they assert that they never received advance notice that the CSE would meet on July 19. The subcommittee recommended that the child should remain classified as learning disabled, and that he should be enrolled in a regular education program, with resource room services for five periods per week, during the 1994-95 school year. The CSE also recommended that the child have access to a school social worker, on an as needed basis, to ease his transition back into a public school setting. Petitioners received a notice of the CSE's recommendation, and thereafter they were advised that placement had been found for the child in respondents' Jefferson Middle School. At the hearing, respondent's Assistant Director of Special Education Placement testified that there was no space available for the child in the resource room program of the child's "home" school, and that the Jefferson Middle School was the nearest school in which there was space in the resource room program. Petitioners objected to the CSE's recommendation, and respondent agreed to reconvene the CSE.

On September 2, 1994, the CSE met with the child's mother. The child's teacher during the 1993-94 school year and an education evaluator of the Genesee Hospital also attended the meeting. The CSE reviewed the child's records, and again recommended that the child be educated in a regular education program with resource room assistance for five periods per week. The child's IEP provided that he would have access to a word processor, tape recorder, and lecture notes, and that he would receive books on tapes. It also provided that the child would receive an annual audiological evaluation, and the child was to have extended time in which to complete tests, and other testing modifications. The IEP included an annual goal for the child to develop and use compensatory strategies to acquire and effectively use information presented in all academic areas, with nineteen related instructional objectives. It also included an annual goal that the child would participate in the development of a transition plan for future education and employment.

In a letter to the CSE, dated September 9, 1994, petitioners requested that an impartial hearing be held to review CSE's recommendation. They chose to keep the child in the Mastery in Learning Program, which relocated from the St. Charles Borromeo School to Hope Hall. The record reveals that Hope Hall was chartered by the Board of Regents in June, 1994, to operate an elementary school in grades 3-8 for children with special learning needs who had consistently experienced frustration and failure in traditional classroom settings. Hope Hall has not been approved by the State Education Department as a school for children with disabilities for purpose of reimbursing school districts for the tuition of children placed in the private school. The Mastery in Learning Program was reportedly expanded at Hope Hall to include instruction in all academic courses.

The impartial hearing in this proceeding began on February 1, 1995, approximately four months after petitioners requested the hearing. In her decision, the hearing officer noted that she was the third hearing officer to be appointed to hear the case, and that the parties had sought time extensions. In addition to seeking tuition reimbursement for the 1994-95 school year, petitioners sought tuition reimbursement before the 1993-94 school year. They also requested that they be reimbursed by respondent for the cost of private tutoring of the child and for all private evaluations of the child which they had obtained. Respondent objected to petitioner's additional request for reimbursement, on the grounds that it not received any prior notice that the issues would be raised. The hearing officer orally agreed with respondent. The hearing in this proceeding concluded on March 31, 1995.

In her decision, which was dated May 13, 1995, the hearing officer found that the self-contained special education class which the CSE had recommended for the child for the 1993-94 school year was appropriate. She further found that petitioners' request for a hearing to review the CSE's recommendation for the 1993-94 school year had been withdrawn. With regard to 1994-95 school year, the hearing officer found that the resource room recommended by the CSE was appropriate, and that the child's unilateral placement by petitioners in Hope Hall was inappropriate. The hearing officer further found that although respondent was not obligated to provide the child with an independent evaluation, it would never the less be in the child's best interests to receive an independent evaluation. She directed that the evaluation involve a clinical psychological and/or psychiatric examination, and in-depth speech/language evaluation, and an updated occupational assessment. The hearing officer also rejected petitioners' request for reimbursement for private tutoring and evaluation expenses as untimely.

Respondent argues that the appeal should be dismissed because the copy of the petition served upon it was not verified (cf. 8 NYCRR 275.5, 279.1). Although petitioners should have served respondent with a verified copy of their petition, they have filed a verified copy of the petition with the State Education Department, and I will not dismiss the petition on that ground (Application of a Child with a Disability, Appeal No. 94-14).

Respondent also argues that I should not consider eight documents which are annexed to the petition, but which were not part of the record before the hearing officer in this proceeding. However, it is well settled that documentary evidence not presented at the hearing may be considered in an appeal from the hearing officer's decision, if such evidence was unavailable at the time of the hearing or the record would be incomplete without the evidence (Application of a Child with a Disability, Appeal No. 93-22; Application of a Child with a Disability, Appeal No. 95-15). Five of the eight documents were prepared after the hearing had concluded, and were therefore unavailable at the time of the hearing. One of the remaining three documents is a transcript of the CSE meeting which was held on September 2, 1994. I will accept the transcript to make the record complete. The last two documents are affidavits by two individuals who testified at the hearing on behalf of petitioners. Their affidavits are intended to support petitioners' claim, in their petition that the hearing officer should not have conducted the hearing because of a prior professional relationship with the two witnesses. In view of the nature of that claim, I will accept the affidavits as part of the record in this appeal.

Petitioners assert that the hearing officer failed to fully disclose the extent of her "conflict of interest" as a result of her prior employment at the Genesee Hospital Pediatric Developmental Unit. They allege that they were not aware that the hearing officer had been supervised by one of their witnesses at the hearing and had been a fellow employee of another of their witnesses. They acknowledge that at the beginning of the hearing the hearing officer explicitly noted on the record that she had been an employee of the Genesee Hospital Pediatric Developmental Unit, and that she afforded both parties an opportunity to state their objections, if any, to her as the hearing officer. The record reveals that the advocate who represented petitioners at the hearing and the child's mother each stated that she had no objection (Transcript of February 1, 1995, page 5). Petitioners further acknowledge that the hearing officer may have been unaware of their prospective witnesses, but assert that she should have disclosed her prior relationship with each of the two witnesses when they were called to testify. The hearing officer made no further disclosure, and petitioners never raised the issue during the hearing. Instead, they have submitted brief affidavits by the two witnesses, who make conclusory allegations. The witness who was the hearing officer's former supervisor asserts that she has " ... a strong opinion that she [the hearing officer] holds a negative bias towards the testimony and evidence that I presented ... ", while the other witness also opines that the hearing officer had a negative bias against the testimony of both witnesses. Neither witness has explained why she did not inform petitioners or their advocate of the hearing officer's alleged bias at the time of their testimony. My review of the transcript and the hearing officer's decision has not demonstrated any evidence of the alleged bias of the hearing officer. Although the hearing officer's prior relationship with both witnesses could have been a basis for the hearing officer to recuse herself, she was not asked to recuse herself. I find that there is no basis in the record for annulling the hearing officer's decision for the reasons asserted by petitioners.

The central issue in this appeal is whether petitioners are entitled to be reimbursed for their expenditures for the child's tuition at the St. Charles Borromeo School during the 1993-94 school year and Hope Hall during the 1994-95 school year. A board of education may be required to reimburse parents for their expenditures for private special education services, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]; Hiller v. Brunswick CSD, 674 F. Supp. 73 [N.D.N.Y., 1987]). The fact that the facility selected by the parents to provide special education services to their child is not approved as a school for children with disabilities by the State Education Department (as is the case here) is not dispositive of the parents' claim for tuition reimbursement (Florence County School District Four et al. v. Carter by Carter, U.S. , 114 S. Ct. 361 [1993]).

The board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (Matter of Handicapped Child, 22 Ed. Dept. Rep. 487; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Child with a Disability, Appeal No. 93-9). To meet its burden, the board of education must show that the recommended program is reasonably calculated to allow the child to receive educational benefits (Bd. of Ed. Hendrick Hudson CSE v. Rowley, 458 U.S. 176 [1982]), and that the recommended program is the least restrictive environment for the child (34 CFR 300.550 [b]; 8 NYCRR 200.6[a][1]). An appropriate program begins with an IEP which accurately reflects the results of the evaluation to identify the child's needs, provides for the use of appropriate special education services to address the child's special education needs, and establishes annual goals and short-term instructional objectives which are related to the child's educational deficits (Application of a Child with a Disability, Appeal No. 93-9; Application of a Child with a Disability, Appeal No. 93-12).

The child's IEP for the 1993-94 school year reported the child's performance as recorded on standardized achievement tests, while noting that he had difficulty in reading comprehension and writing. It described the child as having good skills, but noted that his slow processing meant that additional time was required for his social interchanges with others. He was described in his IEP as being distractible, having weak organizational skills, and having deficits in his visual motor and language skills. The IEP indicated that the child needed pre-teaching, concept mapping strategies, and auditory and visual pairing of information. It also set forth under the heading of "Special Alert" information about the child's ADD and perforated ear drum, with the notation that he should receive preferential seating, i.e., seating near the teacher. The IEP provided that the child was to receive books on tape, and to have the use of a word processor for narrative responses to test questions and various other testing modifications. The child's IEP annual goals addressed his need for specific strategies to improve his ability to retain and apply information, organize time, materials and assignments, and use mapping techniques for written and oral expression, as well as to improve his academic independence. I find that the child's IEP for the 1993-94 school year accurately described his special education needs, and included annual goals which were related to his educational deficits. However, I am not persuaded that the CSE recommended an appropriate program for the child because the record does not support the need for such a restrictive setting as a self-contained special education class for virtually all of the child's instruction.

Federal regulation provides that a child with a disability may be removed from the regular educational environment only when the nature or severity of the child's disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily (34 CFR 300. 550[b][2]). This child was educated successfully in regular education classes throughout elementary school, albeit with the strongly supportive assistance of his parents, regular education teachers and his speech/language therapist. Notwithstanding his disability, the child continued to make progress throughout elementary school, as reflected by his report cards and his standardized test scores. Some of his teachers testified that they had modified the child's assignments and given him extra assistance to prepare for tests. However, none of the teachers testified that the child's grades did not reflect his ability to work at grade level.

During the 1992-93 school year, the child reportedly had a difficult time socially and academically in Nazareth Hall, the private school in which petitioners had enrolled him, although he continued to receive speech/language therapy. A school psychologist who testified for respondent speculated that the CSE may have chosen a self-contained class for the child because of his difficult experience at Nazareth Hall. Nevertheless, the record does not disclose sufficient information about the child's program, including the special assistance he may have received at Nazareth Hall, or his academic performance there, to provide sufficient justification for the CSE's recommendation of a self-contained class for the 1993-94 school year. I also agree with petitioners' assertion that respondent failed to demonstrate that the child would have instructed with children having similar needs and abilities in the recommended class.

Having found that respondent failed to meet its burden of proving the appropriateness of the program it recommended for the 1993-94 school year, I now turn to the second Burlington criterion, i.e., whether the services selected by the parents were appropriate. Petitioners bear the burden of proving the appropriateness of the child's placement in the St. Charles Borromeo School during the 1993-94 school year (Application of a Child with a Disability, Appeal No. 94-29; Application of the Board of Education of the Monroe-Woodbury CSD, Appeal No. 94-34). The child repeated the seventh grade at the St. Charles Borromeo School, where he was enrolled in a class of twelve children who received separate instruction in their five academic subjects but were in regular classes for Spanish, art, music, and physical education. The two teachers in the Mastery in Learning Program used a curriculum which was based upon the State curriculum, which included only such information as the teachers decided was essential for children to know. That information was broken down into small sequential steps, and presented in small increments until the entire class of twelve children had attained an eighty percent level of mastery. The same instructional techniques were used with all children. One of the teachers of the Mastery in Learning Program testified that adaptive equipment such as a word processor or a calculator was not used, and that the Mastery in Learning Program did not promote the use of compensatory techniques by students. The children in the program were described in the record as "slow learners", whose academic achievement was two years below grade level because of their low cognitive skills. There is little evidence in the record about the child's academic progress at the St. Charles Borromeo School during the 1993-94 school year.

An unapproved private school need not develop its own IEP, or follow a school district's IEP. However, it must nevertheless demonstrate that it is addressing the child's identified needs, in order for the child's parents to obtain tuition reimbursement for the private school. This child's previously identified needs involve the use of compensatory techniques and adaptive devices, which were not provided in the Mastery in Learning Program at the St. Charles Borromeo School during the 1993-94 school year. Despite the child's deficits in reading comprehension and written language, he had age appropriate word recognition and mathematic skills. I find that a program for slow learners, in which the same techniques are used with each child and only a portion of the State curriculum is presented, is not the individualized instruction which is required for children with disabilities by Federal and State law, nor is it the least restrictive environment for this child. The requirement that a child be placed in the least restrictive environment applies to unilateral parental placement (P.J. v. State of Connecticut, 788 F. Supp. 673 [D. Conn., 1972]; Application of a Child with a Handicapping Condition, Appeal No. 92-7, decision sustained, sub nom. Lord v. Bd. of Ed. Fairport Central School District et al., 92-CV-6286 [W.D.N.Y., 1994]). I find that petitioners have failed to meet their burden of proving that the program which they obtained for the child at the St. Charles Borromeo School during the 1993-94 school year was appropriate under the Individuals with Disabilities Education Act (20 USC 1400). In view of that finding, I do not reach respondent's argument that petitioners cannot be reimbursed with public funds for tuition at a parochial school. It is also unnecessary to determine whether petitioner's failure to respond to the letter of December 17, 1993 by respondent's attorney with regard to their prior request for a hearing constituted a waiver of their right to challenge the CSE's recommendation for the 1993-94 school year.

Petitioners challenge the CSE's recommendation for the 1994-95 school year on procedural and substantive grounds. They assert that the CSE improperly met without them or the child's teacher from the St. Charles Borromeo School on July 19, 1994, when the CSE drafted the child's IEP. At the hearing in this proceeding, the CSE chairperson acknowledged that neither petitioners nor the teacher attended the July meeting, but testified that she believed that a notice of the proposed meeting had been sent to petitioners. In any event, the CSE reconvened on September 2, 1994, after learning that petitioners had not received notice of the July CSE meeting. Although the provisions of the IEP which had been drafted at the July meeting were not extensively discussed at the September 2, 1994 CSE meeting, there is no indication in the transcript of the latter meeting that petitioners were denied an opportunity to discuss or revise the child's IEP. The CSE chairperson testified that an annual goal for the child to maintain minimum competency standards in all courses was added to the child's IEP at the urging of petitioners' advocate during the meeting on September 2, 1994. A comparison of the July and September IEP's reveals that the annual goal was added at the September meeting. I find that there is no legal basis for annulling the September 2, 1994 IEP because petitioners did not attend the earlier CSE meeting.

Petitioners also assert that the child's IEP does not provide sufficient specificity about the frequency of the resource room services which the CSE recommended. The IEP indicated that the child was to receive group resource room service for five periods per week. At the hearing, the school psychologist member of the CSE testified that the CSE intended the child to have resource room services for one period each day. Although I agree with petitioners that the CSE should have been more explicit in stating its intention when it prepared the child's IEP (8 NYCRR 200.4[c][2][vi]), I find that its failure to do so does not afford a basis for finding that the child's program set forth in the IEP was inappropriate.

Petitioners further assert that the program which respondent in fact offered the child was not the program which the CSE had recommended in the child's IEP. They contend that if the child had been placed in respondent's Jefferson Middle School during the 1994-95 school year, he would have been in a "blended" program, rather than a regular education program with resource room services. Petitioners have not defined the term "blended". In any event, I find that there is no merit to petitioners' assertion. Ms. Jean Hjelle, the Coordinator of Special Education at the Jefferson Middle School testified that resource room services were part of an "inclusion" program. The term "inclusion" usually refers to the placement of a child with a disability with age-appropriate peers in a regular education class, in which the child receives appropriate special education services. Ms. Heather Burns, the resource room teacher at the Jefferson Middle School described the resource room services which she provided to children in and outside of their regular education classes. The description of the resource room program given by Ms. Hjelle and Ms. Burns is entirely consistent with the definition of resource room program in State regulation (8 NYCRR 200.1 [hh]). Since what petitioners have referred to as "blended" classes were in fact regular education classes, there is no legal basis for their assertion that respondent failed to demonstrate the similarity of needs of the children in those regular education classes.

Petitioners have not challenged the 1994-95 IEP's description of their child's educational strengths and needs, or the appropriateness of the IEP annual goals. I must note that the IEP did not include the results of any standardized test scores, despite a reference to achievement testing conducted in April, 1994 in the minutes of the September 2, 1994 CSE meeting. The IEP did include teacher estimates of the grade equivalents for the child's reading and mathematics skills. The child's IEP, like that which had been prepared for the 1993-94 school year, included appropriate notations about the child's ADD and fluctuating hearing loss. It also described his learning style, in terms of the child's need for additional time to process information, his need for repeated directions, and his need for multi-modal instruction. I find that the IEP adequately described the child's needs to assist the teachers who would have been required to implement the IEP.

Petitioners do challenge the appropriateness of the special education services which the CSE recommended for the child. They contend that a regular education program with resource room services would not have met their child's needs because he required instruction in a structured setting with consistent teaching techniques. I cannot agree with their contention. An educational evaluator who had evaluated the child at the Genesee Hospital in 1992 testified that the child needed to learn various strategies and techniques to bypass certain weaknesses in the learning process which he had, and will continue to have, eg. organizational strategies, testing modifications, the use of a word processor, and textbooks on tape. I find that the child's IEP for the 1994-95 school year provided the support necessary to accommodate the child's need for repetition in directions, multisensory presentations, compensatory techniques, adaptive equipment, and alternative testing techniques. Those techniques and services would have assisted the child in continuing to become an independent learner. Although the child spent the 1993-94 school year in a small, more restrictive environment, it does not follow that he should have remained in that kind of setting for the 1994-95 school year. I have already held that he did not require a restrictive special class placement for the 1993-94 school year. Even with the addition to the child's IEP of the annual goal that the child would achieve minimum competency in all subjects, there is still no basis in the record for me to find that the child required a more restrictive environment than regular education classes, with the assistance of resource room services, to achieve his IEP annual goals. Therefore, I must find that the child's recommended program, which otherwise addressed his educational needs, was the least restrictive environment for him. I have considered petitioners' other assertions, including their assertion that the CSE improperly delegated its responsibility to recommend the location of the child's resource room program to respondent's placement office. I find these assertions to be without merit. There is no requirement that the CSE identify the middle school in which the child would be enrolled for regular education classes.

Having found that the program which the CSE recommended for petitioners' child during the 1994-95 school year was appropriate, I must find that respondent has met its burden of proof with respect to the first of three Burlington criteria. As a result, I concur with the hearing officer's conclusion that respondent is not obligated to reimburse petitioner for the cost of the child's tuition at Hope Hall during the 1994-95 school year.

Petitioners also request that I review the CSE's recommendation for the child's educational program during the 1995-96 school year. Their request for review of the recommendation for the 1995-96 school year must be denied because it is premature. The State Review Officer's jurisdiction is limited to reviewing the decisions of impartial hearing officers. There has been no decision by a hearing officer with respect to the CSE's recommendation for the 1995-96 school year.

There is one portion of the hearing officer's decision which I must address. With regard to petitioners' request for an independent evaluation, which they made at or shortly after the CSE meeting held on May 6, 1994, the hearing officer found that the district was not at fault for not agreeing to pay for the cost of the evaluation, " ... given the conflicting and assorted responses to their request for an evaluation." A school district is required to either pay for an independent evaluation, or initiate an impartial hearing to obtain a hearing officer's decision that the district's evaluation was appropriate (34 CFR 300.503 [b]). Although there is no evidence that respondent either initiated a hearing, or dealt with the issue at the hearing in this proceeding, there is also no evidence that petitioners in fact obtained an independent evaluation by appropriate licensed or certified individuals. In the future, respondent must respond to parental requests for independent evaluations at respondent's expense by either acknowledging its responsibility to pay for the evaluations, or promptly initiating hearings (Application of a Child with a Handicapping Condition, Appeal No. 92-19).

 

THE APPEAL IS DISMISSED.

 

 

 

 

 

 

 

Dated: Albany, New York

July , 1995 FRANK MUŅOZ