The State Education Department
State Review Officer
Nos. 97-42 & 97-43
Applications of the BOARD OF EDUCATION OF THE ALBION CENTRAL SCHOOL DISTRICT and a CHILD WITH A DISABILITY, by her parent, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education
Harris Beach and Wilcox, LLP, attorneys for the board of education, David W. Lippitt, Esq., of counsel
Bouvier, O'Connor, Esqs., attorneys for the parent, Judith M. Gerber, Esq., of counsel
The Board of Education of the Albion Central School District and the mother of a child with a disability have separately appealed from the decision of an impartial hearing officer regarding the services to be provided to the child. Since both appeals arise from a single hearing officer's decision, they have been consolidated for purposes of this decision.
The board of education appeals from the hearing officer's determination that the individualized education program (IEP) for the 1996-97 school year which respondent's committee on special education (CSE) had prepared for the child was inadequate, and from his order requiring the board of education to assume financial responsibility for the child's tuition at the Norman Howard School as of March 1, 1997. The board of education seeks a determination that its educational program would have been appropriate for the girl, or in the alternative that her parent's unilateral placement of her in the Norman Howard School was inappropriate. The board's appeal must be sustained in part.
The girl's mother, hereinafter the "parent", appeals from the hearing officer's determination that the board of education should not be responsible for the girl's private school tuition prior to March 1, 1997. She also appeals from the hearing officer's alleged failure to address each of her claims of procedural irregularities by the CSE. The parent seeks an order requiring the board of education to reimburse her for the cost of her daughter's tuition at the Norman Howard School for the entire 1996-97 school year. The parent's appeal must be sustained in part.
The child, who is sixteen years old, initially attended school in the Lewiston-Porter Central School District. She reportedly had difficulty applying new skills while in the first grade during the 1987-88 school year, and she repeated that grade during the 1988-89 school year. Her study skills and her reading skills were described as "improving" on her report card for the 1988-89 school year, and she was promoted to the second grade. However, a report which the child's first grade teacher sent to the parent (Exhibit 30) revealed that the child had scored near the top of her class in mathematics, but near the bottom of her class in reading, on tests administered to the class. The girl achieved satisfactory grades while in the second grade during the 1989-90 school year. On a group administered standardized achievement test which was given in May, 1990, the child achieved grade equivalent scores of 2.1 for total reading, and 2.9 for total mathematics. Her vocabulary skills were slightly better than her comprehension skills.
The child entered the Albion schools in the third grade during the 1990-91 school year. She received A's and B's on her report card, but her teacher reported that the child needed to practice reading orally, and that her reading comprehension skills were weak. The child had been enrolled in a remedial reading program. Her remedial reading teacher indicated that the child's reading skills had improved. However, she answered only 21 of 56 questions correctly on the New York State Pupil Evaluation Program Third Grade Reading Test which was administered to her in May, 1991. On the California Achievement Test which was also administered to her in that month, the girl's word analysis and vocabulary skill scores were in the first and second stanines, respectively, while her score for reading comprehension was in the third stanine. Her mathematics skill scores were in the fifth stanine, i.e., the average range.
At her mother's request, the child was evaluated by a school psychologist in November, 1991. The child achieved grade equivalent scores of 2.3 for letter-word identification, and 3.3 for passage comprehension, on the Woodcock-Johnson Psychoeducational Battery-Revised. The school psychologist reported that the girl's achievement in reading fell within the low average range. Although the girl was eligible to continue to receive "Chapter 1" (remedial reading) services during the fourth grade, she was withdrawn from that program by agreement of the parties because she was being privately tutored in reading. The child's report card grades for the fourth grade were all in the 80's and 90's. Nevertheless, her Degrees of Reading Power instructional level in May, 1992 was 37, which was at the eighteenth percentile nationally, and the nineteenth percentile locally. On the California Achievement Test, her mathematics skills were in the average range.
During the 1992-93 school year, the child was enrolled in the fifth grade of the Albion Middle School. She apparently received Chapter 1 reading instructions (Exhibit 45). Although the child's performance on a standardized reading test near the end of the year indicated that she had not achieved any growth in her skills, the Chapter 1 teacher reported that the child had in fact made progress. The child's fifth grade report card indicated that she had performed satisfactorily in each of her subjects.
The child was placed by her parent in the sixth grade of the St. Mary's School in Batavia, New York for the 1993-94 school year. She continued to receive Chapter I reading instruction in that school. At the end of the school year, her Chapter I teacher reported that the child's phonic skills were very good, and that her sight vocabulary had improved. Nevertheless, the child's reading comprehension continued to be difficult because she required extra time in which to process information and decide what it meant. On the Comprehensive Tests of Basic Skills (CTBS), a standardized test which was administered to her in March, 1994, the child's reading vocabulary skills were found to be at the 11th percentile nationally, and her reading comprehension skills were at the 12th percentile nationally. Her language skills were found to be at the 34th percentile nationally, while her mathematics skills were at the 35th percentile nationally. Her spelling skills were found to be at the 21st percentile nationally. Her grades for the sixth grade academic subjects were in the 70's and 80's.
In June, 1994, the child was privately evaluated at the Reading and Learning Disorders Center in Rochester, New York. She achieved a grade equivalent score of 4.6 on the Peabody Word Recognition Test, and a grade equivalent score of 4.8 for word recognition and sentence reading on the Brief Form of the Kaufman Test of Educational Achievement. Her reading comprehension skills, as measured by the Peabody Reading Comprehension Test, were reported to be at a late third to early fourth grade level. The child's spelling skills were also found to be at the early fourth grade level. The child's evaluator reported that the girl displayed the error and response patterns of an individual with a specific reading disability due to word learning and decoding deficiencies, as reflected by the fact that she had scored in the high average to above average range on tests of non-verbal thinking and reasoning, while her performance on tests requiring word recognition and comprehension skills was in the low average to average range. The evaluator recommended that the child participate in specialized reading and spelling instructional programs, and he suggested techniques for the child's teachers to use with her.
The child remained in the St. Marys School for the 7th and 8th grades. On the CTBS which was administered in April, 1995, the girl's national percentile scores were 33rd for reading vocabulary, 54th for reading comprehension, 63rd for mechanics of language, 52nd for language expression, 30th for mathematical computation, 34th for mathematical concepts and application, and 29th for spelling. On her seventh grade report card at St. Mary's, the child received final grades of 81.7 for reading/literature, 80.4 for language arts, 69.9 for mathematics, 76.1 for social studies, and 76.1 for science. While in the eighth grade at St. Marys during the 1995-96 school year, the child's grades declined somewhat, most notably in science. Her final grades for mathematics and science were in the 60's, and her other grades were in the 70's. It must be noted that many of her final examinations were read to her, and that she had the services of a scribe for some of her final examinations.
During the Fall of 1995, the girl was privately evaluated at the Learning Development Center of the Rochester Institute of Technology (RIT). On the Slosson Oral Reading Test, the child achieved a grade equivalent score of 7.6 for reading decoding. She was able to independently read at the 7th grade level, but she required additional time and reassurance to do so. Her performance was better, and she displayed less anxious behavior, when she independently read at the 5th grade level. The RIT evaluator reported that the child was able to produce a writing sample rapidly, without assistance. The girl reportedly made a few spelling errors, which were reported to be phonetic in nature. The evaluator recommended that the child be formally tested to discern the true nature of her learning disability. She also recommended that the child receive preferential seating in school to minimize distractions, and that she be allowed to acquire information in alternative modes, such as books on tape, movies, and oral discussion of material.
In January, 1996, the girl was evaluated, at her parent's expense, by Dr. Richard Fauth, who is a licensed psychologist. Dr. Fauth reported that the girl had achieved a verbal IQ score of 97, a performance IQ score of 94, and a full scale IQ score of 95, all of which were in the average range. She exhibited relative strength on subtests requiring the use of higher level conceptual and reasoning ability, but she evidenced significant weakness in sequential memory and thinking. The girl also exhibited weaknesses in retrieving information, processing language, and organizing her expressive language. On the Woodcock Johnson Psychoeducational Battery-Revised, the child achieved grade equivalent scores of 11.9 for word attack skills, 7.6 for letter-word identification, 7.6 for passage comprehension, and 5.2 for dictation (spelling). However, Dr. Fauth testified in this proceeding that these results did not accurately reflect her skills because he had not timed her performance, as was required by the test protocol (March 4, 1997 Transcript, page 69). In his written report, Dr. Fauth indicated that the child's primary weakness was in reading. He predicted that she would be challenged by secondary school mathematics because of the deficits in her sequential memory and thinking. Dr. Fauth described the child as well adjusted, but having substantial self-doubt. He recommended that the child receive a brief overview of the scope and purpose of each lesson in class, and that multi-modal teaching techniques be used, i.e., oral, visual, and tactile "hands-on" learning. He further recommended that the girl be coached on techniques for reading and note-taking, and that she use books on tapes. Dr. Fauth also recommended that the child be given extra time in which to complete most of her tests. He suggested that some counseling might be necessary in order for the child to develop a more positive sense of herself as a learner.
On January, 26, 1996, the parent wrote a letter to Albion's Assistant Superintendent of Schools, in which she alluded to the child's prior schooling, and her evaluations. The parent asked for a written plan for the child's high school education. The Assistant Superintendent sent the parent information about referring her child to the CSE. On February 16, 1996, the CSE received the referral by the parent, who indicated to the CSE that the girl should be classified as learning disabled. On March 6, 1996, the parent provided the CSE with the results of the IQ testing which Dr. Fauth had performed. She had previously given the CSE the results of the child's two prior evaluations. The CSE chairperson advised the parent that the child would not have to be evaluated, but she requested that the parent complete a social history form, and that the childs teacher in St. Marys complete a classroom observation form. The CSE chairperson also asked the parent to have the childs physician complete a physical examination form. All three forms were filled out and returned to the CSE.
On March 28, 1996, the CSE met with the parent. Although the classification of the child as a child with a learning disability was discussed, the CSE deferred making any recommendation about the childs classification or placement. Two members of the CSE testified at the hearing in this proceeding that the parent was concerned about her daughters performance in St. Marys, but she did not want to make any significant change in the girls placement for the remainder of the 1995-96 school year. However, the parent testified that she had expected the CSE to recommend that her daughter be classified and to prepare an IEP for her (March 5, 1997 Transcript, page 145). She also testified that she didnt know what an IEP was, and that she wanted a document she could use to compel St. Marys to make accommodation for her childs disability (Ibid, pages 146, 150). In any event, two members of the CSE and the parent prepared an accommodation plan for the child pursuant to Section 504 of the Rehabilitation Act of 1973 (29 USC 794), which was reportedly intended to provide guidance to the childs teacher in St. Marys about dealing with the girls learning disability.
The CSE met again with the parent on June 6, 1996. In the interim since its previous meeting, the school psychologist member of the CSE formally determined that a psychological evaluation was not required (See 8 NYCRR 200.4 [b] ). He recommended that the child be allowed to use books on tape, have questions read to her on tests, and be provided with books at her reading level. He indicated that she would need assistance with organization and study skills, and recommended that she not be penalized for misspellings, and that she should be allowed to use a spell checker. The school psychologist further recommended that the girl be given preferential seating in classrooms, and suggested that she would benefit from counseling to reduce her anxiety.
On June 6, 1996, the CSE recommended that the girl be classified as learning disabled. It also recommended that she be mainstreamed in all of her school subjects, but that she receive direct consultant teacher services (see 8 NYCRR 200.1 ) for her English course for three hours per week. I note that at the hearing in this proceeding the special education teacher member of the CSE testified that class periods were 40 minutes in length, and that she would have provided direct consultant teacher services to the child in her regular education ninth grade English class five times per week. The CSE also recommended that the child receive 30 minutes of counseling per week, although it did not specify in the IEP whether the child would receive individual or group counseling. The CSE further recommended that the child participate in an "extended day program" in the Albion High School, which was described at the hearing as a 30-minute class of no more than twelve learning disabled ninth grade students, during what would otherwise be the childs morning homeroom period. The students in the class were to be instructed in the use of various time management and study skills. I note that the IEP should have indicated the amount of time per day the child was to have participated in the extended day program (8 NYCRR 200.4 [c][vi]).
At the end of the CSE meeting, the parent handed the CSE chairperson a letter in which she indicated that she believed that her daughter should be enrolled in the Norman Howard School. The record reveals that on May 24, 1996, the Norman Howard School had accepted the child for admission, and that fact was communicated to the CSE two days before its meeting with the parent on June 6, 1996. In her letter to the CSE chairperson, the parent requested that an impartial hearing be held to review the CSEs recommendation. The parent unilaterally enrolled the child, at her expense, in the Norman Howard School for the 1996-97 school year.
The hearing in this proceeding was initially deferred, while the parties explored a possible settlement. The hearing began on March 4, 1997, and it concluded on March 6, 1997. In his decision which was rendered on May 14, 1997, the hearing officer found that the IEP which the CSE had developed for the girl did not adequately identify the nature of her disability, or the strategies to be used to remediate her academic deficits. He further noted that the CSE had not complied with the State regulatory requirement that a child suspected of having a disability be observed in the childs classroom by someone other than the childs teacher (8 NYCRR 200.4 [b][viii]), and that the child had not been interviewed about her vocational skills, aptitudes, and interest as required by 8 NYCRR 200.4 (b)(4)(vii). The hearing officer also found that the childs IEP annual goals were vague, and did not appear to have been prepared for this child. He concluded that the consultant teacher services which the CSE had recommended for the child would have been insufficient to address her special education needs.
The hearing officer remanded the matter back to the CSE to prepare an appropriate IEP for the child for the 1997-98 school year (although that school year was not at issue in the proceeding), and he decided that it would be "fair" to have the board of education assume responsibility for the childs tuition in the Norman Howard School as of March 1, 1997. He did not explain the basis for his conclusion, nor for his conclusion that the private school had become the childs "pendency placement" (see Section 4404  of the Education Law). Finally, the hearing officer rejected the parents claim that the board of education had treated her child unfairly with regard to the manner in which it had transported the girl to the Norman Howard School.
The board of education asserts that the hearing officer erred in refusing to consider a revised IEP which had been prepared for the child by the CSE chairperson, and the school psychologist and special education teacher members of the CSE as a settlement offer in February, 1997 (Exhibit 26). Although this amended IEP would have provided additional services to the child, and contained more detailed annual goals and objectives, it was admittedly not adapted by the full CSE, and the parent had not been given the opportunity to participate in its development. Therefore, I find that the hearing officer correctly declined to consider the amended IEP as the childs IEP (Dorian G. by Christina S. v. Sobol et al., U.S. D.C. E.D. N.Y., 93 CV 0687, Jan. 24, 1994).
The board of education contends that it was prepared to provide an appropriate educational program to the child during the 1996-97 school year, notwithstanding the alleged irregularities which the hearing officer found in the childs June 6, 1996 IEP. 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 CSD v. Rowley, 458 U.S. 176 ), and that the recommended program is the least restrictive environment for the child (34 CFR 300.550 [b]; 8 NYCRR 200.6[a]). An appropriate program begins with an IEP which accurately reflects the results of evaluations 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).
Initially, I note that there is no dispute about the childs classification as learning disabled. Nevertheless, I am compelled to note that the CSEs recommendation with respect to the childs classification, as well as educational program, was flawed by its failure to have the child observed in her then current educational placement, as required by State regulation. I must further note that the CSE failed to comply two Federal regulatory requirements in its evaluation of the child by not having a regular education teacher as part of the multidisciplinary team (34 CFR 300.540 [a]), and by not preparing a written report of the results of the evaluation (34 CFR 300.543).
The CSEs recommendation was also fatally flawed because the CSE did not include the required childs teacher member at either its March 26, 1996, or June 6, 1996, meetings. Federal regulation (34 CFR 300.344 [a]) and New York State Education Law Section 4402 (1)(b)(1) require that a childs teacher be a member of the CSE which conducts a review, or makes a recommendation for services to be provided to the child. When, as here, the child is not enrolled in the public schools, the school district may designate the individual to serve as the childs teacher member of the CSE. The individual so designated must be in addition to the mandatory CSE member who is the school district representative who is qualified to provide or supervise the provision of special education. The record does not reveal the CSE chairpersons qualifications to provide or supervise the provision of special education. The board of education has simply denied the parents contention that its CSE was improperly constituted, but it has not demonstrated that all of the required CSE members were in attendance.
Although the CSE could rely upon the results of private evaluations, rather than do its own testing (Application of a Child with a Disability, Appeal No. 97-57), it was obligated to use the pertinent information from the private evaluations to prepare the childs IEP in a way so as to accurately describe her present levels of performance, and to indicate her academic achievement and learning characteristics, social development, physical development, and management needs (8 NYCRR 200.4 [c][i]). I find that the bare bones description of this childs needs and abilities in her June 16, 1996 IEP was inadequate to afford a basis for drafting annual goals and short-term instructional objectives which were consistent with her needs and abilities (cf. 8 NYCRR 200.4 [c][iii]). Given this childs long struggle to develop proficiency in reading, and Dr. Fauths report of her disability in reading, it is difficult to understand how the CSE could have prepared an IEP which did not indicate that reading was an area of academic need, and which did not include an annual goal related to reading. Instead, the CSE drafted a single academic goal to improve her written language skills by six months, one of the short-term objectives for which was that she take notes from reading with 70 percent accuracy. At the hearing, one member of the CSE testified that the CSE had not included an annual goal for reading on the childs IEP, because reading goals were "incorporated in the curriculum" (March 5, 1997 Transcript, page 33). However, " the goals and objectives in the IEP should focus on offsetting or reducing the problems resulting from the childs disability that interfere with learning and educational performance in school" (34 CFR Part 300, Appendix C, Question 40). In this instance, I find that the CSE did not adequately identify the childs special education needs, and failed to prepare IEP goals for her which were reasonably related to her primary special education need.
I must also concur with the hearing officers determination that the special education services which the CSE had recommended for the child were inadequate. The child was most recently evaluated by Dr. Richard Fauth, in January, 1996. At the hearing, Dr. Fauth testified that reading was a difficult task for the girl because of the deficits in her sequential memory skills. He opined that she probably had a neurological defect which made it difficult for her to convert a visual symbol on a page into its phonemic or vocal verbal counterpart. Dr. Fauth also testified that the child had language processing, retrieval, and sequencing deficits which not only made reading difficult for her, but also interfered with her ability to listen for sustained periods of time. He pointed out that the child was slow in reading decoding and comprehension. He opined that her problems were pervasive, and would require that she receive a substantial amount of direct special education intervention in a small class setting. Dr. Fauth's description of what the child needed in order to function successfully was closely paralleled by the testimony of one of the child's teachers in the Norman Howard School during the 1996-97 school year. For example, the teacher testified that she had to stop and make frequent comprehension checks with the child, and that she needed to use various strategies to ensure that the girl knew what to look for while reading. Although I have carefully considered the testimony of the school districts witnesses about the program recommended by the CSE, I am not persuaded that three hours of direct consultant teacher services plus the extended day program would begin to meet the childs need for direct special education instruction. Therefore, I find that the board of education failed to meet its burden of proof with regard to the appropriateness of the educational program which its CSE had recommended for this child.
A board of education may be required to pay for educational services obtained for a child by the child's parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent's claim (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 ). 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 Norman Howard School during the 1996-97 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). One of the requirements of the Individuals with Disabilities Education Act is that children with disabilities be placed in the least restrictive environment (20 USC 1412  [B]). Since the parent's claim for tuition reimbursement is premised upon the provisions of the Federal statute, she must also show that the placement which she selected for her child is the least restrictive environment for the child (P.J. v. State of Connecticut, 788 F. Supp. 673 [D Conn., 1972]); Application of a Child with a Disability, Appeal No. 92-7, decision sustained sub nom; Lord v. Board of Ed. Fairport CSD et al., 92-CV-6286 [W. D. N. Y., 1994]). However, the requirement that children with disabilities be placed in the least restrictive environment must be balanced against the requirement that they receive an appropriate education (Briggs v. Bd. of Ed. of the State of Connecticut, 887 F. 2d 688 [2d Cir., 1989]).
The hearing officer found that neither the placement recommended by the CSE, nor the Norman Howard School, was appropriate for the child, but he held that the private school placement was the " more beneficial both in educational programming and social/emotional support ". He also held that the private school was the least restrictive environment for the child. The board of education contends that the Norman Howard School was not an appropriate placement for the child because the child's advisor/English teacher was not certified by the State Education Department to teach special education. However, there is no requirement that a private school employ certified special education teachers (Application of a Child with a Disability, Appeal No. 94-20), and I note that the State Education Department has approved the Norman Howard School to provide instruction to learning disabled children. The teacher in question testified that the girl was grouped with other children who had similar strengths and needs in classes which did not exceed ten students. She further testified that each of the child's teachers in the Norman Howard School used a variety of specialized techniques, such as cognitive mapping, word webs, mnemonics, a test-taking strategy known as "Pirates," and a self-editing strategy known as "COPS". In addition to instruction in English, writing, mathematics, science, and social studies, the girl also received one period per day of laboratory or resource services. The English teacher testified that during the laboratory period, she worked with the child to apply the specialized instructional strategies which she had learned to help her complete her homework assignments. Having considered the recommendations by Dr. Fauth and Ms. Schwartz, who had evaluated the child, I find that the Norman Howard School provided the kinds of specialized instructional services which this child required during the 1996-97 school year.
The board of education also argues that the Norman Howard School was an inappropriate placement because it provided the child with only one 45-minute period of counseling per week. At the hearing, the child's advisor/English teacher testified that the child continued to have difficulty discussing aspects of her disability, and that when she pressed the child to address those issues, the child had reacted by withdrawing from the group during her English class. Nevertheless, the child remained socially appropriate with adults and peers, and her academic performance during the first and second marking periods was reportedly better than it had been previously. The advisor/English teacher testified that she and the child's counselor were working to encourage the child to become part of the group again in her English class. Under the circumstances, I find that the board of education's argument is without merit.
As noted above, the special education services which a parent has obtained for a child must be appropriate, and must be provided to the child in the least restrictive environment. The Norman Howard School is located approximately 30 miles from Albion, and it instructs only children with disabilities. Prior to her enrollment in the Norman Howard School, this child had achieved passing grades while enrolled in the regular education programs of Albion and St. Mary's. Nevertheless, I find that the board of education has not refuted Dr. Fauth's testimony that it would be inefficient for this child to learn in a large class because of the complexity of her learning weaknesses. He also testified that the child would benefit emotionally by being instructed with other learning disabled children, all doing age-appropriate schoolwork. There is nothing in the record before me which indicates that the child could have received an appropriate education in a less restrictive environment than the Norman Howard School during the 1996-97 school year. Therefore, I find that the private school was the least restrictive environment for the child.
The third and final criterion for an award of tuition reimbursement is that equitable considerations support the parent's claim. Upon review of the record which is before me, I find that the child's parent has cooperated at all times with the CSE, and that equitable considerations do support the parent's claim for tuition reimbursement. Having found that the parent has met the criteria for an award of tuition reimbursement, I next consider her appeal from the portion of the hearing officer's decision which limited her reimbursement for tuition to the period from March 1, 1997 to the end of the 1996-97 school year. The hearing officer did not explain the basis for his decision to limit the parent's recovery of tuition. While I note that the hearing in this proceeding was deferred until March, 1997 with at least the parent's tacit consent, it does not follow that her award of tuition reimbursement should have been limited as the hearing officer apparently did. I find that the parent is entitled to receive an award of tuition reimbursement for the entire 1996-97 school year. Accordingly, I will sustain her appeal.
The parent also appeals from the hearing officer's determination that the board of education had appropriately transported the child to the Norman Howard School during the 1996-97 school year. When the parent's attorney raised the issue of her daughter's transportation in her opening statement at the hearing, respondent's attorney objected on the ground that the parent had not included that issue in her request for an impartial hearing. However, some documents which related to the issue of transportation were admitted into evidence and there were brief references to the issue during testimony of certain witnesses. Nonetheless, the hearing officer ruled on the second day of the hearing that he had "enough information" on the subject, and declined to allow the parent's attorney to pursue the issue. In essence, the issue is whether the board of education could require the child to be brought to a centralized pickup point within the school district in order to be transported by the board of education to the Norman Howard School. At the hearing, the parent suggested that it was discriminatory for the board of education to require her child to go to a pickup point, when it allegedly provided door to door transportation to another student who also attended the Norman Howard School. Although the issue was not explicitly raised by the parent's hearing request, I agree with her that it had been raised by her attorney in the latter's correspondence with the attorney for the board of education well before the hearing was held. Nevertheless, I must note that the school year in question has ended, and there is no indication of what, if any, transportation the board of education is providing to the child during the 1997-98 school year. I do agree with the parent that her child's entitlement to transportation was authorized by Section 4402 (4) (d) of the Education Law, rather than the generic transportation provisions found in Section 3635 of the Education law. However, the record does not afford a basis for determining whether the transportation provided by the board of education was "suitable", as that term is used in the statute.
The parent also challenges the hearing officer's decision because it did not address each of her objections to the procedures which the board of education and its CSE had employed. Some of those objections have been addressed in my decision. I also agree with the parent's contention that the CSE's notice of its recommendation failed to specify the tests and reports on which the recommendation was based (cf. 8 NYCRR 200.5 [a]  [ii] [b]), or to list the other options which the CSE had considered and the reasons why those options were rejected (cf. 8 NYCRR 200.5 [a]  [i] [c]).
There is one more issue which I must determine. The board of education has appealed from the hearing officer's determination that the Norman Howard School was the child's "then current", or pendency, placement as that term is used in the former 20 USC 1415 (e) (3), now 20 USC 1415 (j), and Section 4404 (4) of the Education Law. In this instance, the parties did not mutually agree upon the child's placement in the Norman Howard School. The hearing officer ordered, and I have agreed, that the parent should be reimbursed for the cost of the child's tuition in the Norman Howard School. However, neither he nor I found that the board of education should have placed the child in the private school. Our findings that the parent was entitled to tuition reimbursement do not afford a basis for concluding that the private school had become the child's pendency placement (Application of a Child with a Disability, Appeal No. 96-83; Application of a Child with a Disability, Appeal No. 96-92). Therefore, I will sustain the board of education's appeal to the extent of annulling the hearing officer's determination that the Norman Howard School had become the child's pendency placement.
THE APPEAL OF THE BOARD OF EDUCATION IS SUSTAINED TO THE EXTENT INDICATED.
THE APPEAL OF THE PARENTS IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that the decision of the hearing officer is annulled to the extent that he limited the parent's recovery of tuition to the period from March 1, 1997 to June 30, 1997, and he determined that the Norman Howard School had become the child's pendency placement; and
IT IS FURTHER ORDERED that the board of education shall reimburse the parent for her expenditures for the child's tuition in the Norman Howard School for the 1996-97 school year, upon the parent's presentation to the board of education of proof of those expenditures.
|Dated:||Albany, New York||__________________________|
|December 11, 1997||FRANK MUÑOZ|