The State Education Department
State Review Officer

No. 96-30

 

 

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 Board of Education of the City School District of the City of New Rochelle

Appearances:
Neal H. Rosenberg, Esq., attorney for petitioner

McGuire, Kehl and Nealon, LLP, attorneys for respondent, Marion C. Katzive, Esq., of counsel

 

DECISION

        Petitioner appeals 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 petitioner's son for the 1995-96 school year, and which denied petitioner's request for reimbursement of her expenditures for the child's tuition in the Windward School. Respondent cross-appeals from the hearing officer's finding that the initial individualized educational program (IEP) which its CSE prepared for petitioner's son on May 17, 1995, was insufficient and inappropriate. The appeal must be sustained. The cross-appeal must be dismissed.

        Petitioner's son, who is ten years old, was in the fourth grade of the Windward School during the 1995-96 school year. The child has never been enrolled in respondent's schools. He attended a preschool program of the Scarsdale YMHA before enrolling in the Solomon Schechter School for kindergarten and the first grade. He reportedly had difficulty concentrating, and exhibited impulsive behavior, while in the first grade. In October, 1992, the boy was evaluated by a pediatrician in the New York Medical College. The pediatrician reported that the results of the child's neurological evaluation were unremarkable, but that the results of questionnaires completed by the child's parents and his first grade teacher indicated that the child had an attention deficit disorder. He recommended that Ritalin be administered to the child.

        In November, 1992, an educational evaluation of the child was performed in the New York Medical College. His cognitive skills were found to be in the average range, with moderate deficits in long-term retrieval and processing speed. The evaluator suggested that the child's difficulty in acquiring sight words could be the result of a deficiency in his ability to recall symbols for words and novel visual stimuli. She noted that when the child saw a word, he had difficulty quickly analyzing the letters of the word, assigning a sound to the those letters, and then auditorally synthesizing those sounds together to form a word. On achievement tests, the child exhibited deficits in his letter-word identification skill and dictation skill, i.e., the ability to write letters or words from memory. His knowledge of social studies, science, and the humanities was reported to be at or above his grade level.

        In early 1993, the child was evaluated by a private psychologist, who described the child as easily engaged, and having an above average ability to carry on a conversation with an adult. She reported that the child had achieved verbal, performance, and full scale IQ scores which were in the superior range, but she did not report the actual scores. The psychologist also reported that there was a marked contrast between the child's superior language skills and his low average fund of general knowledge. She indicated that the child could perform mental calculations quite accurately, while his performance on short-term recall tasks was below average. She noted that the kind of difficulty which the child exhibited with recall tasks was typical of children who had an attention deficit disorder (ADD). She opined that the child's ADD was responsible for relative deficits in the child's short-term recall, mental manipulation, cognitive impulsivity, and attention to detail. She further opined that the child was experiencing a delay in his maturation in "cracking the code" for mastery in reading. The psychologist recommended that a multi-sensory phonetic approach be used to teach the child to read. She noted that the child's loss of control for monitoring behavior and his impulsivity in verbal expression have decreased since he began taking medicine for his ADD, but opined that he would require a behavior modification program to be used by his parents and his teachers.

        The child's ability to maintain his attention reportedly improved, after he began taking Ritalin, while in the first grade. He nevertheless continued to have academic delays, and was placed in a resource room program in the Solomon Schechter School. He was also privately tutored in reading, with the Orton-Gillingham methodology. At the end of the first grade, the child was removed from the Solomon Schechter School, and was thereafter enrolled in the Windward School, in White Plains, New York. The Windward School provides instruction to children with learning disabilities, but it has not been approved by the State Education Department as a school for children with disabilities. The child attended the Windward School for the second grade during the 1993-94 school year, and the third grade during the 1994-95 school year.

        In a letter dated February 27, 1995, petitioner referred her son to the CSE. On March 15, 1995, petitioner filed an application with respondent for the transportation of the child to the Windward School during the 1995-96 school year, in accordance with the provisions of Section 3635 (2) of the Education Law. On March 21, 1995, a copy of a notice of referral, with a request for parental consent to the child's evaluation, (see 8 NYCRR 200.5 [a]) was sent to petitioner. On April 5, 1995, petitioner gave her consent to have her son evaluated. On April 22, 1995, the child's physician reported that the results of the child's physical examination were normal.

        An educational evaluation of the child was performed by one of respondent's special education teachers, on May 5, 1995. On the date of his evaluation, the child was eight years and ten months old, and was nearing the end of the third grade. The special education teacher reported that the child had achieved an age equivalent score of 8.3 and a grade equivalent score of 2.6 in basic reading skills. She also reported that he had achieved an age equivalent score of 9.0 and a grade equivalent score of 3.6 in reading comprehension. It should be noted that the teacher later amended her report to indicate that the child had in fact received an age equivalent score of 8.3 and a grade equivalent score of 2.8 in reading comprehension. In mathematical reasoning, the child achieved an age equivalent score of 8.9 and a grade equivalent score of 3.3. He also achieved an age equivalent score of 8.3 and a grade equivalent score of 2.7 in numerical operations. The child's listening comprehension skills were reported to be at an age equivalence of 9.9 and a grade equivalence of 4.4. He achieved an age equivalent score of 9.0 and a grade equivalent score of 3.6 in spelling. On a test of his proficiency in written language, the child achieved a score in the 37th percentile.

        The special education teacher reported that the child's ability to discern the meaning of words in context exceeded his ability to decode words presented in isolation. She noted that during the evaluation the child had misread some frequently used words, but was able to correctly read less familiar words, because the latter words were more easily decoded by sound-symbol knowledge and other strategies which the child had been taught in the Windward School. She described the child as rather lethargic in his approach to reading. She further reported that the child's mathematical computation skills were not as strongly developed as his ability to reason mathematically. She noted that the child often appeared to be unaware of the mathematical sign used in the calculation he was performing. The child was described as able to comprehend information presented to him verbally at the mid-fourth grade level. The special education teacher reported that the quality of the child's verbal expression was superior to his written expression. She reported that there was a discrepancy between what the child had to say and his ability to express it on paper.

        The special education teacher recommended that the boy continue to be taught with techniques such as those used at the Windward School for computation and reading decoding. She also recommended that the child continue to receive sensitivity training to enable him to know his strengths and weaknesses, and recommended that he be allowed to use a tape recorder to assist him in developing his written expression and improving his organizational skills. On May 10, 1995, the same teacher observed the child for approximately 30 minutes in a language arts class with five other children in the Windward School. She reported that the child listened attentively throughout the lesson, which she described as being highly structured and multi-sensory in its approach. She also noted that a behavior modification plan was being used in the classroom.

        On May 12, 1995, petitioner was interviewed for the purpose of preparing the child's social history. Petitioner reported that the child had achieved his developmental milestones within the usual limits. However, the child was under the care of an endocrinologist because his rate of physical growth was in the tenth percentile. Petitioner reported that the child was receiving counseling because his peers had commented about his small size. Petitioner also reported that the child was taking Ritalin four days per week on school days, and only as needed on the weekends. She indicated that Ritalin had impacted positively on the child's behavior and ability to focus, but that the child's educational progress continued to lag.

        On May 12, 1995, the child was evaluated by one of respondent's school psychologists, who noted that the child had not taken Ritalin on that day. He reported that the child was noticeably inattentive. During the course of the evaluation, the child reportedly required repetition of verbally oriented questions, and made numerous extraneous motions. The school psychologist reported that the child exhibited word retrieval, naming, and prepositional difficulties on verbally oriented test items, as well as a mild articulation deficit. Although the school psychologist was aware that the child had previously been evaluated in 1993, he did not have the results of that evaluation available to him. He reported that the child had achieved a verbal IQ score of 95, a performance IQ score of 104 and a full scale IQ score of 99. The school psychologist indicated that the child was functioning in the average range of intelligence, yet evidenced signs of above-average to superior mental potential. He reported that the child's fund of information was in the superior range, and that the child's long-term verbal memory was also strong. The child's short-term verbal memory, auditory attention and concentration, and oral numerical reasoning skills were reported to be in the average range. However, the child was described as functioning in the borderline to mildly deficient range on tasks associated with vocabulary, expressive language skills, fluency, and verbal abstraction. In the non-verbal domain, the child was in the borderline range of functioning with regard to tasks requiring rote learning, visual memory, attention, and encoding.

        Although the child's freedom from distractibility was reported to be in the high-average range, he exhibited deficits in his processing speed. The school psychologist reported that the child showed significant signs of problems regulating his activity level, attention and organizational skills. He opined that language processing deficits were at the base of the child's weakness in verbal comprehension, and that they probably impacted upon his ability to achieve in reading and language arts. He further reported that the child evidenced signs of graphomotor weakness, which was suggestive of a fine motor coordination deficit. The child's social and emotional development were reported to be typical of a child with learning and attention deficits. The school psychologist recommended that the child continue to receive special education, a speech/language evaluation, and short-term counseling. At the hearing in this proceeding, he testified that he had recommended that the child receive a speech/language evaluation, only if the results of the child's educational evaluation raised concerns which a speech/language evaluator could address. He further testified that he had not recommended that the child receive counseling as a related service under an IEP, but wanted to alert the CSE about the child's possible need for support.

        The child's parents were invited to meet with the CSE at 11:00 A.M. on May 17, 1996. Arrangements were reportedly made to have a representative of the Windward School participate by telephone in the CSE meeting. However, the meeting reportedly did not begin on time, and petitioner was unable to stay for all of the CSE meeting because she had another appointment. Her husband remained for the entire meeting. The representative of the Windward School did not participate in the meeting. It should be noted that respondent did not place the child in the Windward School, and was therefore not required to ensure that a representative of the private school participate in the CSE meeting (Application of a Child with a Disability, Appeal No. 96-18). Although the psychologist member of the CSE left before the end of the meeting, she testified that the CSE had already reached a consensus decision about the child's educational program.

        The CSE recommended that the child be classified as learning disabled. At the hearing in this proceeding, the psychologist member of the CSE readily acknowledged that the child may not have exhibited evidence of a specific learning disability, as defined by State regulation (see 8 NYCRR 200.1 [mm][6]), but insisted that he did evidence signs of a general learning disability, as indicated by his attention deficit, slow progress in acquiring reading skills, and weakness in mathematical calculation. In any event, the child's classification as learning disabled is not disputed. Therefore, I am precluded from reaching the issue of his classification (Hiller v. Bd. of Ed. Brunswick CSD et al., 674 F. Supp. 73 [N.D. N.Y., 1987]).

        The CSE also recommended that the child be enrolled in a "transition" class for 120 minutes of special education instruction per day, and that he receive the remainder of his instruction in a regular education fourth grade class. Although the term "transition" has different meanings in Federal and State regulations (see 34 CFR 300.18; 8 NYCRR 200.1 [pp]), respondent has used it in yet another sense. The Director of Special and Alternative Education testified that the transition class was intended to assist children coming from special education schools or self-contained classes, but who needed remediation before being placed with their regular education peers on a more consistent basis. The transition class provided direct special education instruction in reading, language arts and mathematics, as well as assistance in developing organizational and study skills, in a class of no more than fifteen children. The record reveals that at the time of the hearing there were seven children enrolled in the transition class.

        The IEP which was prepared at the May 17, 1995 CSE meeting indicated that the child would be mainstreamed for AMPEL (art, music, physical education and library), reading, science and social studies. A notice of the CSE's recommendation, which was not mailed to the parents until June 16, 1995, also indicated that the child would be mainstreamed for instruction in each of those subjects. However, at the hearing, respondent's representatives insisted that the CSE had intended that the child receive special education instruction in reading, while in the transition class. The IEP's description of the child's management needs indicated that the child needed special education to develop his decoding skills. In any event, the school psychologist acknowledged that the ambiguity created by the wording of the IEP and notice of recommendation was not dispelled, until a subsequent CSE meeting at which the child's IEP was revised.

        The child's May 17, 1995 IEP also indicated that the child would receive consultant teacher services (see 8 NYCRR 200.1 [1]) during the portion of the school day when he was in a regular education program. The child's subsequent IEP revealed that he would receive one and one-half hours of consultant teacher services per week. In its "least restrictive environment" portion, the child's IEP indicated that the CSE believed that the child could benefit from mainstreamed instruction, with the assistance of a one-half day special education program and curriculum modifications in the regular program. It further indicated that the CSE believed that a program of regular education and supplemental instruction in a resource room program would not be adequate to meet the child's needs.

        In a letter dated June 27, 1995, petitioner's attorney asked respondent's Director of Special and Alternative Education to arrange for an impartial hearing. The Director thereafter discussed the matter with the child's parents, and invited them to meet again with the CSE on July 21, 1995. However, the parents reportedly declined to meet with the CSE at that time. The hearing officer in this proceeding scheduled the hearing to begin on July 28, 1995. At the hearing on that date, the parties agreed that the hearing would be adjourned pending the results of another CSE meeting. They also agreed that the parents would provide the CSE with copies of the child's educational and psychological evaluations from 1992 and 1993, respectively.

        The CSE, which met on August 8, 1995, included the same individuals who had attended the May 17, 1995 CSE meeting, except for the parent member. Although the Windward School was reportedly asked to participate in the meeting, no representative did so, either in person, or by telephone. The CSE adhered to its prior recommendation that the child receive a combination of special education in the transition class and regular education in a fourth grade class. It indicated that he would be mainstreamed for AMPEL, science, social studies, and "sustained silent reading (for pleasure)." At the hearing, the teacher of the fourth grade class in question explained that the children in her class engaged in silent reading for 30 minutes immediately after lunch, and that formal reading instruction was given during the morning, when this child would have been in the transition class.

        The hearing resumed on September 8, 1995. It concluded on January 23, 1996. In his decision, which was dated January 27, 1996, the hearing officer noted that the CSE's initial recommendation was made 53 days after the child had been referred to it, but 28 days after petitioner had given her written consent for the child's evaluation. State regulation provides that a CSE shall make its recommendation within 30 days1 after the receipt of parental consent to an evaluation, or 40 days after receipt of a referral, whichever shall end earlier (8 NYCRR 200.4 [c]). The hearing officer found that this "technical violation" did not prejudice petitioner, because petitioner had received the CSE's recommendation for the 1995-96 school year with sufficient time to challenge the recommendation by requesting a hearing, and to obtain a revised IEP for her child before the beginning of the 1995-96 school year. Nevertheless, the hearing officer found that the IEP which was prepared on May 17, 1995 was inappropriate, because it had not been prepared on a timely basis, and it incorrectly indicated that the child would be instructed in reading in his regular education class. He further found that the IEP was inappropriate because it failed to adequately address the child's reading needs.

        The hearing officer also found that it was appropriate for the CSE to reconsider the child's classification and placement on August 8, 1995 in light of the additional information which petitioner provided to the CSE. That information consisted of the results of the child's private evaluations which were made when he was attending the Solomon Schechter School. With regard to the IEP which the CSE prepared on August 8, 1995, the hearing officer held that the new IEP was an appropriate educational plan which would have afforded the child an opportunity to receive educational benefit in the least restrictive environment.

        In addition to finding that the educational program set forth in the August 8, 1995 IEP was appropriate for the child, the hearing officer found that the Windward School was too restrictive a placement for the child, because it would not provide any interaction with non-disabled students. The hearing officer also found that equitable considerations did not support petitioner's claim for tuition reimbursement. His finding was premised upon his belief that petitioner should have provided the results of the independent evaluation to the CSE at its first meeting, and that petitioner had never intended to place her child in respondent's schools. He denied her request for tuition reimbursement.

        In her petition, petitioner expresses concern about the hearing officer's objectivity, in light of certain remarks made by the hearing officer at the hearing in regard to conducting an evaluation of the child when he was not taking Ritalin, and to classifying the child as learning disabled. She also objects to the hearing officer's finding that she never intended to place the child in a public school. A hearing officer must avoid even the appearance of impropriety, and must render a decision based upon the record (Application of a Child with a Disability, Appeal No. 94-32). Upon review of the entire record, I find that there is no evidence of a lack of objectivity by the hearing officer. I note that the private psychologist who had evaluated the child in 1993 had recommended that the child be evaluated while taking Ritalin, and that the psychologist member of the CSE conceded at the hearing that the child might not meet the regulatory definition of a child having a specific learning disability. The hearing officer observed the demeanor of the witnesses, and drew certain inferences from the evidence presented, with respect to petitioner's intention to enroll her child in respondent's schools. His finding with regard to petitioner's intentions is not evidence of bias on the part of the hearing officer.

        A board of education may be required to pay for educational services obtained for a child by the child's parents, 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]). The fact that the facility selected by the parents to provide special education services to the 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]).

        The IEP which the CSE reportedly drafted at its meeting of May 17, 1995, but which it did not provide to petitioner until June 16, 1995, was untimely. As noted above, State regulation provides that:

"For a student not previously identified as having a disability, the committee on special education shall provide a recommendation to the board of education within 30 days of the date of receipt of consent, or within 40 days of the date of receipt of referral, whichever period shall end earlier." (8 NYCRR 200.4 [c])

        By letter dated June 16, 1995, respondent's Director of Special and Alternative Education advised petitioner that the CSE "will recommend to the Board of Education" a program for the child, which she briefly described. A copy of the child's IEP was attached to the Director's letter. The Director was asked at the hearing about the delay of almost 30 calendar days after the CSE meeting on May 17, 1995, before the CSE provided its recommendation to petitioner and the Board of Education. The Director testified that it was a busy time of year for respondent's special education department. I find that this explanation, and the CSE's delay, are unacceptable. In addition, I note that State regulation also requires that the Board of Education must review the CSE's recommendation and arrange for the child's placement within 30 days of the receipt of the CSE's recommendation (8 NYCRR 200.4 [d]). Although the matter of respondent's approval of the CSE's recommendation was briefly alluded to at the hearing, no evidence of respondent's approval was offered.

        The IEP from the CSE's May 17, 1995 meeting was also found by the hearing officer to be inadequate for the child. I concur with his finding. The IEP's description of the child's present levels of performance and individual needs alluded to his attention, language and learning difficulties, but did not specifically describe his reading and writing deficiencies or needs. The portions of the IEP in which the child's management needs were described indicated that he needed "...direct intervention to assist in developing more mature decoding skills, math computation skills, writing ability and 'executive order' strategies...") The IEP included only one annual goal for English/language arts and writing. That goal and its two short-term instructional objectives focused solely upon the child's writing skills. Therefore, I find that the IEP failed to address the child's reading needs, and that there is no merit to respondent's cross-appeal from the hearing officer's decision.

        Petitioner challenges the hearing officer's finding that, notwithstanding the deficiencies in the chid's first IEP, respondent met its burden of showing that it had offered an appropriate educational program to the child because the revised IEP prepared at the CSE's August 8, 1995 meeting overcame the deficiencies of the earlier IEP. She argues that this proceeding was commenced to review the IEP which resulted from the CSE's meeting on May 17, 1995, contends that the hearing officer erred by reviewing the subsequent revision of that IEP on August 8, 1995.

        I agree with the hearing officer that the CSE had the right to reconsider its recommendation (Application of a Child with a Handicapping Condition, Appeal No. 91-8), and in doing so, to cure the defects in the child's IEP (Application of a Child with a Handicapping Condition, Appeal No. 92-9). I also agree with him that the revised IEP of August 8, 1995 was a substantial improvement over the prior IEP of May 17, 1995. The new IEP more adequately described the child's needs, and clearly provided that the child's reading disability would be addressed by providing him with primary special education instruction in reading, in the proposed transition class. The revised IEP annual goals and corresponding short-term instructional objectives gave every indication that respondent had proposed to provide the child with specialized instruction which was targeted to address his special education needs. Although petitioner challenges the CSE's failure, in either IEP, to recommend that the child receive counseling as a related service, I am not persuaded on the record before me that the child required counseling as a component of the free appropriate public education which respondent was required to offer to him. Nevertheless, I do not agree with the hearing officer's finding that respondent met its burden of proof with regard to the appropriateness of the program which it offered to the child.

        The parents of a child with a disability are entitled to receive an offer of a specific placement with sufficient information to enable them to make an informed decision whether to accept the offer (Application of a Child with a Disability, Appeal No. 94-15). A board of education's offer of an educational placement must also be made on a timely basis, so that the child's parents have a reasonable opportunity to decide whether to accept the board's recommendation, or make alternative arrangements. In this instance, the CSE's final recommendation was made five months after the child had been referred to it, and approximately one month before the start of school for the 1995-96 school year. Petitioner testified that she had waited until the last moment to make a financial commitment to the Windward School for the child's tuition for the 1995-96 school year. While one of respondent's witnesses suggested that it was likely that petitioner made that commitment well before the CSE met on May 17, 1995, there is no evidence in the record to support that suggestion. Under the circumstances, I find that respondent's delay of five months in offering an appropriate placement to the child compels me to conclude that it did not meet its burden of proof with respect to the first of three criteria for obtaining tuition reimbursement, i.e., whether the services offered by the board of education were appropriate (Application of the Board of Education of the City School District of the City of New York, Appeal No. 95-69).

        The child's parent bears the burden of proof with regard to the appropriateness of the services which the parent obtained for the child at the Windward School during the 1995-96 school year (Application of a Child with a Disability, Appeal No. 94-29; Application of the Bd. of Ed. of the Monroe-Woodbury CSD, Appeal No. 93-34; Application of a Child with a Disability, Appeal No. 95-57). In order to meet that burden, the parent must show that the services were "proper under the act" [Individuals with Disabilities Education Act] (School Committee of the Town of Burlington v. Department of Education, Massachusetts, supra 370), i.e., that the private school offered an educational program which met the child's special education needs (Application of a Child with a Disability, Appeal No. 94-29). The private school need not employ certified special education teachers, nor have its own IEP for the child (Application of a Child with a Disability, Appeal No. 94-20).

        In this instance, there is no dispute that the child required primary special education instruction in reading, writing and mathematics, or that a specialized multisensory teaching technique, such as the Orton-Gillingham methodology used in the Windward School, was appropriate for the child. The parties do not agree about the amount of special education which the child required during the 1995-96 school year. In the Windward School, the child received three periods per day of reading and language arts instruction, one period of social studies, one period of mathematics, one period of physical education, and one period of science, art, library, or computer training, each day. All of his education was received in the company of other children with disabilities.

        An administrator of the Windward School testified that the child was placed with seven other children in one of three fourth grade homerooms, and that the fourth grade students were grouped by their ability in each subject, for instructional purposes. The administrator, who was also the child's mathematics teacher during the 1995-96 school year, opined that the child would be "lost" in a group of 24 children, such as the child's one-half day regular education class recommended by respondent's CSE. She testified that the child needed to be "recognized" in class, and be afforded extra time to process information. The administrator also testified that the child required small classes and homogeneous grouping with other children with disabilities because of his fragile ego and painful awareness of his learning disability. The administrator's testimony was supported by the private psychologist who had been working with the child since May, 1995. The psychologist testified that he began to counsel the child because the child had much anxiety, which was reportedly caused, at least in part, by deficits in his expressive language skills which limited the child's ability to be understood by his peers. The psychologist also testified that the child did not make transitions from one activity to another easily, and expressed his concern about having this child be the only child in his public school homeroom leave his class for approximately one-half of the day in order to receive special education in the transition class. The psychologist opined that the child was better off in a school like Windward, which serves only children with disabilities.

        In meeting her burden of proving that the services provided to her son by the Windward School were appropriate, petitioner must show that her son's placement in that facility was consistent with the requirement of the Individuals with Disabilities Education Act that children with disabilities are educated in the least restrictive environment (20 USC 1412 [5] [B]; P.J. v. State of Connecticut, 788 F. Supp. 673 [D. Conn., 1992]; 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]). The record reveals that the child was previously unsuccessful in the regular education program of the Solomon Schechter School, even with the assistance of resource room services. Petitioner testified that the child was frustrated by his inability to keep up with his regular education peers in an after school Hebrew education program, which he was attending during the 1995-96 school year. The child's records from the Windward School suggest that he has made slow progress in a full-time special education program. I find that petitioner has demonstrated that the Windward School was the least restrictive environment for the child for the 1995-96 school year, and that petitioner has met her burden of proof with regard to the second Burlington criterion for tuition reimbursement.

        The third, and last, criterion for tuition reimbursement is whether equitable considerations support petitioner's claim for tuition reimbursement. While I in no way condone petitioner's failure to offer the results of the child's evaluations in 1992 and 1993 to the CSE, until August 8, 1995, I cannot find any basis in the record for concluding that the petitioner's failure to do so was responsible for the CSE's delay in preparing the initial IEP, or the inadequacy of that IEP. The August 8, 1995 revision of the child's IEP contained little information which was attributable to the results of the earlier private evaluations. Although petitioner chose not to investigate the program which was discussed at the May 17, 1995 CSE meeting, she did cooperate with the CSE, and met again with the CSE on August 8, 1995. Petitioner was entitled to receive a timely offer of an appropriate educational program for her son, but did not receive such an offer. I find that equitable considerations support her claim for tuition reimbursement.

        THE APPEAL IS SUSTAINED.

        THE CROSS APPEAL IS DISMISSED.

        IT IS ORDERED that the decision of the hearing officer is hereby annulled; and

        IT IS FURTHER ORDERED that respondent shall reimburse petitioner for her reasonable expenditures for the child's tuition in the Windward School for the 1995-96 school year, upon presentation by petitioner to respondent of proof of such expenditures.

 

 

Dated: Albany, New York __________________________
August 13, 1996 ROBERT G. BENTLEY

 

                    

1    The term "days" means school work days, except during July and August (8 NYCRR 200.1 [m]). Respondent reportedly received the referral on March 3, 1995. Respondent has annexed a copy of its school calendar to its answer. It would appear that the CSE met with petitioner on the 45th day after receipt of the referral. However, the CSE did not make its recommendation, i.e., provide a copy of the child's IEP to petitioner, until June 16, 1995, which was the 65th school day after respondent received the referral.