92-007

Petitioner appeals from the determination of an impartial hearing officer which upheld the recommendation by respondent's committee on special education (CSE) that petitioner's child be enrolled for the 1991-92 school year in a special education class for some subjects and mainstreamed for other subjects at respondent's high school. The hearing officer denied petitioner's request for reimbursement for private school expenditures for unilaterally placing her child in the Norman Howard School. Respondent Board of Education of the Fairport Central School District cross-appeals from the portions of the hearing officer's decision which found that the CSE should have given notice of, and allowed petitioner to participate in, the CSE meeting at which the child's individualized education program (IEP) was developed, and which found that the child should be mainstreamed for mathematics. The appeal must be sustained in part and the cross-appeal be dismissed.

In 1982, the child was classified by the Palmyra-Macedon Central School District as severely speech impaired because of a deficit in the child's expressive language. In November, 1984, petitioner and the child became residents of the Fairport Central School District. On December 6, 1984, respondent's CSE recommended that the child be classified as learning disabled. That classification has continued, and is not in dispute in this appeal.

In a psychological evaluation performed in June, 1991, shortly before the child's sixteenth birthday, the child achieved a verbal IQ score of 101, a performance IQ score of 109, and a full-scale IQ score of 105. Respondent's school psychologist reported that the child had strength in visual organization and planning, and verbal reasoning. Relative deficiencies were also observed in the child's vocabulary, fund of factual information, visual sequencing, visual motor integration and word retrieval. In an educational evaluation also performed in June, 1991, as the child was completing tenth grade, the child achieved a grade equivalence of 6.8 in reading decoding and 6.4 in reading comprehension. The evaluator reported that the child used several strategies independently to improve her reading comprehension, which with support and instruction in teacher directed strategies, enabled the child to improve her reading comprehension to almost her actual grade level. The evaluator also found that the child's mild problems in language retrieval and naming things interfered with her ability to demonstrate what she had learned. The child achieved a grade equivalence of 11.7 in mathematical computation using a calculator, and a grade equivalence of 9.8 in mathematical application.

Upon entry into respondent's schools in November, 1984, the child was temporarily placed in a regular education class with resource room services. In January, 1985, the child was placed in a special education class for primary instruction. She remained in self-contained classes through the 1986-87 school year, but was mainstreamed for mathematics during the 1985-86 and 1986-87 school years. For the 1987-88 school year, the CSE recommended that the child receive primary instruction in all subjects except mathematics, music, art and physical education in a special education class in respondent's Johanna Perrin Junior High School. At petitioner's request, an impartial hearing was held in August, 1987 to review the CSE's recommendation. The hearing officer found that respondent had offered an appropriate program, and denied petitioner's request that respondent pay for the child's tuition at the Norman Howard School, which was not approved by the State Education Department at that time as a school for children with handicapping conditions. Petitioner unilaterally placed the child in the Norman Howard School, where she remained, at petitioner's expense, for the next four years.

In May, 1991, the Norman Howard School was approved by the State Education Department as a private school for children with learning disabilities. Petitioner orally requested that respondent's CSE recommend that the child continue at the Norman Howard School as a school district placement. Despite the fact that the child had previously been classified and received services as a child with a handicapping condition, the CSE treated petitioner's request as an initial referral of the child, and sought petitioner's permission to evaluate the child (cf. 34 CFR 300.504 [b][1]), 8 NYCRR 200.5 [b][1]. Petitioner's consent to an evaluation was not obtained until June 20, 1991. A psychological evaluation, an educational evaluation and a social history were completed in June, 1991, but the child was not observed in three classes at the Norman Howard School until October 2, 1991.

On July 9, 1991, the CSE met with petitioner and a representative of the Norman Howard School to discuss the results of the June evaluations. On July 10, 1991, the CSE met for what respondent describes as an executive session, to which petitioner was not invited. At the July 10 meeting, the CSE prepared the child's IEP for the 1991-92 school year. The chairperson of the CSE testified at the hearing that after the CSE meeting on July 10, 1991, he orally advised petitioner of the CSE's recommendation that the child be enrolled in a special class with a child to staff ratio of 15:1 in the Fairport High School for primary instruction in English II, U.S. history and mathematics. The child would be mainstreamed for chemistry, art, music and physical education. He further advised petitioner that the child would also receive resource room services and counseling. The CSE further recommended that the child receive a vocational assessment in the Fall of 1991. The child's IEP also provided that the child would participate in the development of a transitional plan to make a smooth transition from the Norman Howard School to respondent's high school. By letter dated July 10, 1991, petitioner requested that an impartial hearing be held to review the CSE's recommendation.

By agreement of the parties, the hearing began on September 16, 1991, and continued on seven additional days, ending on October 31, 1991. In a decision dated December 6, 1991, the hearing officer found that the placement of petitioner's daughter in a special education class, with mainstreaming, at the Fairport High School would be appropriate for the child and would be the least restrictive environment for the child. The hearing officer directed the CSE to reconvene to recommend a transitional program for the child, and to revise the child's individualized education program (IEP) to provide for the child's mainstreaming in courses at or above her level of achievement in mathematics, science, elective courses, and physical education and also be mainstreamed for lunch. The hearing officer also directed that the child's special education courses in English and social studies meet the requirements set for courses used to satisfy the requirements for a high school diploma and that the child be permitted to take Regents examinations in any course for which she met the requirements for taking such examinations. With regard to the so-called executive session of the CSE on July 10, 1991, the hearing officer held that the CSE could not circumvent the Federal and State regulatory requirement for parental participation in the development of a child's IEP by preparing an IEP in an executive session. The hearing officer held that only a court could order tuition reimbursement.

Petitioner asserts that the hearing officer erred by failing to require respondent to correct alleged deficiencies in the child's IEP, and by finding that the educational program and services offered by respondent would be appropriate. With respect to the appropriateness of the program recommended by the CSE, petitioner asserts that the hearing officer erroneously shifted the burden of proof from respondent to petitioner, and misapplied the criteria for determining the least restrictive environment for the child. Petitioner also asserts that the hearing officer erred in concluding that he lacked authority to order respondent to reimburse petitioner for the cost of the child's tuition at the Norman Howard School, and requests that I issue such an order.

Before reaching the issue of the adequacy of the child's IEP, I will first consider respondent's cross-appeal from the hearing officer's decision finding that respondent had not complied with its legal obligation to afford petitioner the opportunity to actively participate in the development of the child's IEP. Both Federal and State regulations expressly establish the parents' right to participate in meetings at which their children's IEPs are prepared (34 CFR 300.415 [a]; 8 NYCRR 200.4 [c][3]). Respondent urges that I find that petitioner's participation in the CSE meeting of July 9, 1991, where it asserts all placement options were discussed and petitioner's absence from the July 10, 1991 meeting where the IEP was prepared and finalized meet the regulatory scheme. In essence, respondent asserts that a CSE must only listen to the concerns expressed by a child's parents, and need not involve the parents further in the process by which a child's IEP is prepared. Respondent is in error. While it is true that the Commissioner of Education has held that a CSE may discuss appropriate matters in executive session (Application of a Child with a Handicapping Condition, 29 Ed. Dept. Rep. 343 and Application of Bd. of Ed. LeRoy CSD, 29 Ed. Dept. Rep. 496), the Commissioner has not held, nor do I, that a CSE may complete an IEP in executive session. Parental participation must include participation when a CSE decides what services it will recommend that a board of education shall provide for a child (34 CFR 300, Appendix C, Question 26). Merely listening to the parents' concerns and then withdrawing to prepare a child's IEP in executive session does not afford the parents meaningful participation in the IEP process (Application of a Child with a Handicapping Condition, Appeal No. 91-13).

Although the CSE provided petitioner with a draft IEP for purposes of discussion at the July 9, 1991 meeting, the IEP which the CSE prepared at its July 10, 1991 meeting includes not only the child's placement and special education program, but also specifies the related services to be provided, the subjects in which she would be mainstreamed, the kind of diploma she would seek to obtain, four additional annual goals and provision for a transitional plan. Despite respondent's representation that all issues were discussed on July 9, 1991, none of these items was on the draft IEP. Indeed, petitioner and the CSE chairperson offered starkly contrasting testimony at the hearing about whether these matters were even discussed at the July 9, 1991 CSE meeting which petitioner attended, and the draft IEP supports petitioner's position. Respondent concedes that the CSE's notice to petitioner of its recommendation did not list the options considered by the CSE and the reasons why the other options were rejected (cf. 34 CFR 300.505 [a][2]). I find that the hearing officer correctly determined that respondent must allow petitioner to participate in any CSE meeting pertaining to petitioner's child.

With regard to the adequacy of the child's IEP, petitioner asserts that the IEP does not reveal the child's level of achievement in writing, her learning style, or her levels of functioning in terms of social development and management needs. State regulations require that the recommendation of a CSE must be reflected in an IEP which reports the child's level of performance and individual needs in each of four areas: academic achievement including learning characteristics, social development, physical development and management (8 NYCRR 200.4 [c][2][i] and 8 NYCRR 200.1 [jj]). The purpose of this requirement is to enable a CSE to determine the similarity of the child's needs to those of other children in a proposed placement, to prepare annual goals for a child which are specifically related to the child's special education needs, and to ascertain the extent to which the child should participate in mainstreamed educational activities (Application of a Child with a Handicapping Condition, 26 Ed. Dept. Rep. 495).

I find that the child's IEP does not adequately address the child's level of performance and needs in all subjects for which special education services have been recommended. The description of the child's level of performance in English is minimal, and does not address her written language needs, despite the fact that the IEP includes an annual goal for improving her written language skills. Needs of the child that are relevant to her English program are partly set forth under the IEP's description of her management needs. There is no description of the child's level of performance or needs with regard to the United States history course which the CSE has recommended that the child take in a special class. Although the IEP describes the child's level of performance in mathematics, neither the IEP nor any of the testimony adduced at the hearing supports the CSE's recommendation that the child receive instruction in mathematics in a special education class. The CSE chairperson testified that the CSE anticipated that the child might have difficulty in a larger mathematics class, and that the CSE recommended that the child start in a special education mathematics class and later be reassigned to a regular class. The child has passed the Regents course 1 in mathematics, and should have the opportunity to take the Regents course 2 in mathematics, with appropriate support. A special education teacher at respondent's high school testified that a level 2 mathematics course would not be taught in a special education class. Therefore, I find that the hearing officer correctly determined that the child should be enrolled in a mainstreamed Regents course 2 in mathematics.

The child's IEP does not reveal her learning style, which only may be inferred from the description of the child's need for note taking assistance and the use of visual aids, taped texts and a calculator. The child's learning style, particularly her use of various strategies, such as mnemonics, test taking and error spotting techniques in both regular and special education courses, is essential information of importance to all of the child's teachers, and should have been explicitly addressed in the child's IEP.

I find that the IEP adequately addresses the child's social needs, as they relate to her special education needs. The primary consideration in this area is the child's anxiety and stress related to her academic performance. The record does not reveal a need for a more extensive discussion of the child's social functioning and interaction skills. Petitioner's assertion that the child's IEP does not adequately set forth the child's management needs is not supported by the record. Management needs are defined in State regulation as "... the nature and degree to which environmental modifications and human or material resources are required to enable a child to benefit from instruction ..." (8 NYCRR 200.1 [jj][1][iv]). Although petitioner asserts that the IEP's description of the child's management needs should have included a provision for homework modifications, that information is not a management need. The provisions for a transitional plan which the CSE chose to place under the IEP heading of interim Phase II goals would more appropriately have been set forth under management needs, to fully develop the time frame of, and resources needed for, such plan.

Petitioner also asserts that the child's IEP is inadequate because it does not describe the level of mainstream classes, i.e. Regents or local, for the child. An IEP is intended to describe the special education program and services which a child will receive, but must also describe the extent to which the child will participate in regular education programs (8 NYCRR 200.4 [c][2][iv]). Although an IEP need not include annual goals for the child's performance in the regular education program (34 CFR 300, Appendix C, Question 40), the nature of the child's regular education program is a relevant concern in determining the kinds and the extent of the special education support services which the child requires. In this instance, the CSE recommended that the child receive daily resource room services. The CSE's chairperson testified that the purpose of such services was to support the child in her regular educational program. However, neither the IEP nor the testimony of the CSE chairperson revealed whether the CSE had in fact made any determination concerning the level of the child's mainstream courses. Instead, the CSE chairperson's testimony suggested that the CSE believed that resource room services were generally helpful to a child who was mainstreamed for a portion of the school day. In addition to providing a basis for determining the child's need for supportive services, a description of the level of the child's mainstreamed classes also provides useful information to the child's parent to ascertain whether the program offered by the CSE is appropriate. I find that the child's IEP should have included a more explicit description of the mainstream academic courses recommended by the CSE. Petitioner's assertion that the IEP should reveal the purpose of a resource room is without merit. A resource room, by definition, provides supplemental instruction to a child (8 NYCRR 200.1 [gg]).

Petitioner also asserts that the description of the child's annual goals in the IEP is so vague as to be meaningless. An annual goal is a statement which describes what a child can reasonably be expected to accomplish within a twelve month period, in view of his or her handicapping condition(s) (34 CFR 300, Appendix C, Question 38). Annual goals must be sufficiently specific to provide direction to the child's teacher concerning the expectation of the CSE, and must address the individual needs of the child (Application of a Child with a Handicapping Condition, Appeal No. 91-25).

The child's IEP describes 10 annual goals. However, I find that goal 8, which states that "[the child] would benefit from close communication between school and involved outside agencies, which is imperative," is not an annual goal. Other goals such as "to improve reading comprehension skills", and "to improve written language skills" are general expectations for all children, and are not specific enough to be annual goals, because they do not provide direction for closing the gap between the child's ability and current level of functioning (34 CFR 300, Appendix C, Question 40). Although some of the goals appear to be based upon the findings of the educational evaluation performed in June, 1991, the goals are not related to the content of the child's special education classes.

It is well established that a board of education bears the burden of establishing the appropriateness of its recommended program or placement (Matter of Handicapped Child, 22 Ed. Dept. Rep. 487; Matter of Handicapped Child, 23 id. 415; Matter of Handicapped Child, 25 id. 353). Petitioner asserts that the hearing officer erroneously shifted the burden of proof from respondent to petitioner. In fact, the hearing officer found that the placement proposed by the CSE was appropriate and that the child would benefit by returning to a public school program, and then posed the question: why shouldn't the child be given the opportunity to be educated in a mainstream setting in the Fairport High School? The key issue is whether respondent met its burden of proving that its recommended placement was appropriate.

Petitioner asserts that respondent did not demonstrate that the child would be appropriately grouped with other children in special education classes for English, U.S. history and mathematics. I have already determined that the hearing officer correctly concluded that the child should be instructed in a Regents level mathematics course. With regard to the special education classes for English and U.S. history, the record reveals that throughout the course of the hearing whenever a specific class was discussed, respondent's counsel pointed out that specific class assignments had not yet been made for the child. Respondent's counsel also introduced into evidence a class profile of all other eleventh grade children with handicapping conditions enrolled in respondent's high school. Some, but not all of these children would apparently be grouped with petitioner's child, if the child enrolled in the Fairport High School. Since the groups have not been established with respect to this child, respondent has not met its burden of showing that the child would, in fact, be appropriately grouped.

As noted by the hearing officer, the child appears to have made significant progress in developing and using strategies to overcome her educational weaknesses, and in self-advocating. While the child will continue to need some primary instruction in a special education setting, she can function in a regular education setting with appropriate supports. After carefully considering the testimony of the CSE chairperson, BOCES educational evaluator and two representatives of the Norman Howard School, I find that the child's educational needs could be met in a public high school, and that the testimony of respondent's school psychologist and of the child's psychologist established that the child is emotionally equipped to make the transition from a small, private school to a larger public school. The record reveals that respondent has expressed a commitment to attempt to provide a program to meet the child's special education and regular education needs, including a mix of special and regular classes, co-teaching, resource room services, and necessary equipment and devices. Respondent's coordinator of special education testified that respondent's special education teachers are familiar with semantic mapping and other learning strategies which this child has used successfully, and that trained staff from the BOCES diagnostic and prescriptive unit who visit each school building about twice a month to provide advice and assistance to respondent's staff could train the staff in any additional techniques which would be of use to this child. Respondent's special education teacher testified that he was familiar with and used various teaching strategies identical with, or similar to, those described by the educational evaluator.

Although respondent has established that it has the capacity to provide an appropriate placement for the child, I am constrained to find that respondent did not offer such a placement in the July 10, 1991 IEP for the child. Respondent's CSE must revise the child's IEP in accordance with the tenor of this decision and the CSE must identify specific special education classes for the child. I do not agree with petitioner's assertion that the recommended placement was deficient because it did not provide for a gradual transition from the child's private school to the public high school. However, it is imperative that the CSE consult with petitioner, the child, representatives of the private school and of the BOCES diagnostic and prescriptive unit and then provide for appropriate orientation of respondent's staff to the child's abilities and deficits and use of learning strategies.

The remaining issue is whether petitioner is entitled to an award of tuition reimbursement for the child's attendance at the Norman Howard School for the period commencing with September, 1991. The hearing officer concluded, without explanation, that he lacked jurisdiction to grant an award of tuition. The United States Education Department has opined that an impartial hearing officer has the authority to grant any relief which the hearing officer deems necessary to ensure that a child receives the free appropriate public education to which the child is entitled (17 EHLR 522). An impartial hearing officer may order a board of education to reimburse a parent for private school tuition, if all of the criteria for tuition reimbursement are met (Application of a Child with a Handicapping Condition, 29 Ed. Dept. Rep. 394).

A parent is entitled to tuition reimbursement, if the placement recommended by the CSE is inappropriate, the placement selected by the parent is appropriate, and equitable considerations support the claim for reimbursement (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359; Matter of Northeast CSD v. Sobol et. al., 170 A.D. 2d 80; Application of a Child with a Handicapping Condition, Appeal No. 90-8).

Petitioner has satisfied the first part of the Burlington criteria, in view of my finding that respondent did not offer an appropriate placement. Nevertheless, petitioner must still show that the Norman Howard School is appropriate (Application of a Child with a Handicapping Condition, 30 Ed. Dept. Rep. 45). The key issue with regard to the second part of the Burlington criteria, i.e. whether the placement selected by the parent is appropriate, is whether the Norman Howard School is the least restrictive environment for the child. Federal and State regulations require that, to the maximum extent appropriate, each child with a handicapping condition must be educated in the least restrictive environment (34 CFR 300.550 [b][1]; 8 NYCRR 200.6 [a][1]).

Upon the record before me, I find that petitioner has not demonstrated that the Norman Howard School is appropriate, because it is not the least restrictive environment for the child. The child has acquired compensatory strategies for overcoming the effects of her handicapping condition, and has passed Regents comprehensive examinations in earth science, mathematics course 1, global studies and biology. While not required to take Regents level courses, she has opted to take those courses and achieved success in them, at least in part through her strong self-determination. The BOCES educational evaluator, who was familiar with the programs of both the private and public schools and who had observed the child in class at the private school, testified that the child's needs could be met in the Fairport High School and that the child did not require the level of support provided at the private school. The evaluator further testified that she has worked in a public school setting with other children with needs similar to those of this child. The evaluator also testified that the child would benefit academically from placement in a public high school, which would also be an appropriate transition between the intensive special education program and restrictive environment of the private school and college. As specific benefits of attending respondent's high school, the evaluator testified that the child would better understand her strengths and weaknesses relative to handicapped and non-handicapped peers, would learn to advocate for herself in the less protective environment of a public high school, and would have a more extensive range of elective courses to select. If the child remains in the private school, the evaluator testified that she would not be able to model herself after non-handicapped peers and would not improve her self-advocacy skills. Although the assistant director of the Norman Howard School expressed the concern that it might be difficult to assemble all of the necessary program components in the public school, he testified that the child could continue to use elsewhere the learning strategies she had acquired at the private school and that her success in a larger mainstreamed environment would not be impaired by her academic ability.

Since petitioner has failed to meet the second portion of the Burlington criteria and all three portions must be met, I need not reach the issue of equitable considerations.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

THE CROSS-APPEAL IS DISMISSED.

IT IS ORDERED that the decision of the hearing officer, to the extent that it found that respondent had offered an appropriate placement for the child, be, and the same hereby is, annulled, and;

IT IS FURTHER ORDERED that within 30 calendar days after the date of this decision, respondent's CSE shall recommend an appropriate placement for the child in accordance with the tenor of this decision.