92-021

Petitioners appeal from the decision of an impartial hearing officer which denied petitioners' request for reimbursement for the cost of an independent evaluation of their child and for tuition for the child's attendance during the 1991-92 school year at a private school which has not been approved pursuant to Article 89 of the Education Law to provide special education, and from the hearing officer's failure to address petitioners' additional request for reimbursement of their expenditures for a private mathematics tutor for the child during the 1990-91 school year. The appeal must be sustained in part.

The child, who is fourteen years old, was initially classified as learning disabled in January, 1985, while he was in first grade. There is no dispute about his classification. In a triennial evaluation performed in January, 1990, the child achieved a verbal IQ score of 109, a performance IQ score of 101, and a full scale IQ score of 105. Respondent's school psychologist reported that the child demonstrated superior social and abstract reasoning skills, as well as superior expressive/receptive language skills, and relative weaknesses in short-term auditory memory, part-to-whole concept ability and visual acuity/attention to visual details. The school psychologist opined that the child's difficulty with detail-oriented activity would be most apparent in classroom situations in which the child was required to break content material down into meaningful components, such as solving mathematical problems or comprehending paragraphs in a social studies textbook. In November, 1987, the child's neurologist diagnosed the child as having an attention deficit disorder, in addition to having a learning disability. The neurologist testified at the hearing that the child's attention deficit was treated with medication. In an April, 1990 report, the child's sixth grade resource room teacher stated that the child's attention and behavioral control had improved since the child had been on medication.

In a March 16, 1990, educational evaluation of the child, the child was reported to be at, or slightly above, grade level in reading and mathematics, but below grade level in written language. The evaluator noted that the child had appeared to be overwhelmed by the task of writing one story about three pictures for a test of written expression. The child's spelling was described as erratic, in that he misspelled relatively simple words, while correctly spelling more difficult words. The evaluator opined that the child's spelling might reflect difficulties with his long-term memory retrieval. The evaluator recommended that the child continue to receive resource room services.

From the first through fifth grades, the child received one period per day of resource room services. The record reveals that the child's resource room services were increased to two periods per day during the 1989-90 school year, when the child was in sixth grade. The child's report card for the first three quarters of the 1989-90 school year reveals that he made satisfactory educational progress. The record does not reveal the child's final grades for sixth grade. For the 1990-91 school year, the level of resource room services was reduced to one period per day for the child. The child's individualized education program (IEP) for the 1990-91 school year reveals that the resource room services recommended by the CSE were intended to provide supplemental support to meet the child's continuing written language deficits and attentional/organizational needs. The IEP provided for test modifications, including extended time limits, alternate test sites, test directions to be read or revised, and tests to be administered in short segments.

In September, 1990, the child entered seventh grade at respondent's Suffern Junior High School. For the first quarter of the 1990-91 school year, the child received failing grades in science, mathematics and art. Petitioners met with members of respondent's staff in October and December, 1990 and January and February, 1991, to discuss the child's academic performance. The child failed mathematics and art for the second quarter of the 1990-91 school year. On February 22, 1991, petitioners asked to meet with the CSE, for the purpose of revising the child's IEP for the remainder of the school year. They advised respondent's director of special education of their intention to employ a mathematics tutor for the child, and requested reimbursement for the tutor's services. At a March 26, 1991 meeting, the CSE discussed the results of the independent evaluation which petitioners had obtained in February, 1991, and in particular the CSE considered the child's difficulty with mathematical concepts. The CSE denied petitioners' request for the services of a consultant teacher, but provided that the child could use a calculator, as an additional test modification on the child's IEP for the 1990-91 school year. On April 23, 1991, respondent approved the chid's revised IEP. The record reveals that the child passed each of his subjects in the third and fourth quarters of the 1990-91 school year.

On May 7, 1991, petitioners asked for an impartial hearing to review the CSE's denial of their request to amend the child's IEP to provide for consultant teacher services. They also requested that the hearing officer consider their claim for reimbursement for the expenses of an independent evaluation of the child performed in February, 1991 and the services of the private tutor whom they had employed as of April 16, 1991.

On May 28, 1991, petitioners met with the CSE to prepare the child's IEP for the 1991-92 school year. The CSE recommended that the child remain in regular education classes and receive one period per day of resource room services. The CSE further recommended that the child receive counseling one period per week. At the hearing, the CSE chairperson testified that counseling was added because of concerns about the child's self-esteem, and to provide him with assistance in developing cognitive strategies to become aware of how his attention deficit interfered with his ability to function in school. Respondent approved the CSE's recommendations on June 19, 1991. On July 14, 1991, petitioners requested an impartial hearing to review the child's 1991-92 IEP, and asked that their request of May 7, 1991 be considered together with this one in a single hearing. Petitioners unilaterally placed their child in the Windward School for the 1991-92 school year.

The hearing on the May 7, 1991 and July 14, 1991 requests commenced on October 11, 1991 and continued on seven additional dates, ending on January 24, 1992. By decision dated March 20, 1992, the hearing officer found that the notices of the CSE meetings given to petitioners did not comply with the regulatory requirements of advising petitioners of the persons who would be present at the CSE meetings and of their right to request that the physician member of the CSE attend the meetings. The hearing officer further found that the CSE had not violated petitioners' rights by allegedly completing the child's IEPs in advance of the meetings and in failing to schedule the March 26, 1991 CSE meeting at a time which was convenient to petitioners. However, the hearing officer found that the amended IEP for the 1990-91 school year and the IEP for the 1991-92 school year provided only minimal information about the child, and held that respondent had failed to establish the appropriateness of the program which it had offered. The hearing officer remanded the matter to the CSE to consider whether two periods of resource room services per day would be appropriate, after rejecting petitioners' request for consultant teacher services. Petitioners' request that respondent establish special procedures to enable the child to participate in extra curricular activities at school was denied by the hearing officer. The hearing officer found that the evaluation of the child by the CSE was appropriate, and denied petitioners' request for reimbursement for the cost of the independent evaluation. Petitioners' request for tuition reimbursement was denied by the hearing officer on the grounds that the Windward School had not been approved by the State Education Department to contract with school districts to provide special education, and that it was not the least restrictive placement for the child.

Two procedural matters must be addressed before I consider petitioners' appeal. Two letters attached to the petition related to a notice to petitioners of a CSE meeting which was to be held after the hearing officer had rendered his decision. The letters will not be considered in this appeal because they were not part of the record before the hearing officer and are not necessary to reach a decision in the appeal. Petitioners have submitted a reply to respondent's answer. However, Section 279.6 of the Regulations of the Commissioner of Education provides that the State Review Officer may not accept a reply, except where the respondent has asserted procedural defenses or has annexed additional documentary evidence to the answer. In the absence of any procedural defenses or additional documentary evidence with the answer, petitioners' reply cannot be considered in this appeal.

Turning now to the merits of the appeal, neither party disputes the hearing officer's conclusion that the child's amended IEP for the 1990-91 school year and the child's 1991-92 IEP were inappropriate because they did not provide the child the level of services which he required. However, petitioners assert that the hearing officer should have specified the portions of the IEPs which were deficient, so as to provide guidance to the CSE when it prepares future IEPs. Because of the importance of an IEP in developing an appropriate program, I will consider the adequacy of the child's 1991-92 IEP.

An appropriate program begins with an IEP which accurately reflects the findings of a child's evaluations to identify the child's needs, provides for the use of appropriate special education services to address the child's needs and establishes annual goals which are related to the remediation of the child's educational deficits. The IEP prepared by the CSE is inadequate, primarily in the presentation of academic skill levels and related goals. The child's IEP provided a summary description of academic skills and management needs, and does not fully address the child's academic skill levels with regard to deficits in math computation and reading skills. An IEP must describe the child's present level of educational performance (34 CFR 300.346 [a]; 8 NYCRR 200.4 [c][2][i]), and must describe the child's individual needs (8 NYCRR 200.4 [c][2][1]). This child's educational needs include the need for remediation in reading decoding, math computation and writing. The child's IEP includes no specific and current information from the test results or other sources about such deficits, which would afford a basis for determining the child's annual goals in subject areas. The summary data from the child's triennial evaluation of the preceding year presented on the first page of the child's IEP is inadequate to provide a basis for preparing goals for the 1991-92 school year.

A child's IEP should include annual goals which are consistent with the child's needs and abilities, in all of the areas or subjects in which the child requires special education and related services to benefit from the regular education program. Annual goals must be sufficiently specific to provide direction to the child's teachers 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). IEP goals and objectives should focus on offsetting or reducing the problems resulting from the child's disability which interfere with the child's educational performance (34 CFR 300, Appendix C, Question 40). State regulation requires that an IEP set forth the child's annual goals based on individual needs and abilities. These goals should be based on level of performance and individual needs in the areas of educational achievement and learning characteristics, social development, physical development and management needs (8 NYCRR 200.4 [c][2][i]). The child's IEP briefly describes some of the child's learning characteristics and needs, such as the need for repetition to compensate for deficits in recall, but does not provide any performance standards to be achieved as annual goals in the specific areas of deficiency within the areas of mathematics and written expression. Although test results reveal deficits in computation skills, the IEP's math goals do not address the child's need for additional math instruction or remediation, and do not provide any compensatory techniques or checking devices for the child to use in the regular classroom. The child's IEP describes his management needs as requiring supplemental instruction to support mainstreaming and improve organizational strategies. However, the IEP does not include his management need to receive supplemental instruction to remediate his deficits in written expression needed to support his mainstream instruction. Although the use of a calculator was eventually included in the IEP as a testing modification, neither a calculator nor a word processor was considered by the CSE to accommodate the child's organizational or attention deficits or his problems with written expression in the classroom. Moreover, the IEP does not provide for the use of a word processor to assist the child with written expression, despite the testimony of his seventh grade resource teacher that the child used a word processor to improve spelling and capitalization.

Petitioners assert that the hearing officer erred in failing to find that the child had been denied a free appropriate public education (20 USC 1401 [18]) because of numerous procedural violations by respondent. The hearing officer found that the notices of CSE meetings given to petitioners failed to advise them of the names of the individuals who would be present (8 NYCRR 200.5 [a][3]), and of their right to request that a physician member of the CSE attend the meetings (8 NYCRR 200.5 [a][iv]). My inspection of the notices of the March 26, 1991 and June 4, 1991 CSE meetings reveals that such notices advised petitioners of the times, date and place of the meetings, but did not provide them with any of the specific information required by 8 NYCRR 200.5 (a)(1). Nonetheless, these errors do not give rise to the conclusion that the child was denied a free appropriate public education.

Petitioners further assert that respondent failed to schedule the March, 1991 CSE meeting at a mutually convenient time. However, the record reveals that the meeting was initially scheduled to be held at 1:00 p.m. of March 12, 1991. After petitioners asked that the meeting be held at the beginning or end of the day, the meeting was rescheduled for 10:00 a.m. on March 26, 1991. Petitioners attended the March 26th meeting. Implicit in their assertion is their preference that the meeting have been held at another time. However, I cannot conclude that respondent violated the regulatory requirements to schedule IEP planning meetings at mutually convenient times (34 CFR 300.345 [a][2]).

Petitioners also assert that the CSE was improperly constituted on two grounds. First, they contend that because respondent would not disclose to them the name of the parent member of the CSE in advance of their meetings with the CSE, the parent members at each meeting could not be adequately prepared to deal with the issues. Secondly, they contend that the CSE was improperly constituted at its March 26, 1991 meeting, because the CSE member who is a special education teacher left during the course of the meeting. They do not deny the testimony of the CSE's chairperson that the special education teacher member had been replaced at the meeting by respondent's director of special education, nor do they assert that the director was not an appointed member of the CSE. State law requires that a CSE include a representative of the district who is qualified to provide or to supervise the provision of special education (Education Law Section 4402 [1][b][1]). I find no merit to either of petitioners' contentions concerning the composition of the CSE.

Petitioners also complain of the failure by the child's resource room teacher to accurately state each annual goal from the child's Phase I IEP for the 1990-91 school year on the child's Phase II IEP which the teacher prepared, and which petitioners signed. While the list of annual goals set forth in the Phase II IEP does not completely mirror the annual goals set forth in the child's Phase I IEP, the short-term objectives of the Phase II IEP do relate to the child's Phase I annual goals. Since the primary purpose of the Phase II IEP was to set forth such objectives, I do not find that the inaccurate listing of annual goals on the child's Phase II IEP is a significant error.

Petitioner asserts that the CSE unilaterally developed the child's annual goals for the revised 1990-91 IEP and the 1991-92 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]). Petitioners raise two issues involving the preparation of the child's IEP goals. With regard to the child's 1990-91 IEP which was revised following a March 26, 1991 CSE meeting, petitioners assert that the CSE unilaterally added references to improving the child's grasp of mathematical concepts and to improving his basic computational skills to the child's IEP goals. They further assert that these items were not discussed at the March 26th meeting. The CSE chairperson testified at the hearing that she had revised the child's goals to reflect the sense of the CSE, following its discussion of the child's needs. The chairperson conceded that the CSE had not expressly voted to amend the child's IEP goals. The minutes of the meeting, while not verbatim, also do not reflect any finding by the CSE that the child's goals should be changed. In Application of a Child with a Handicapping Condition, Appeal No. 92-3, I noted that only the CSE as a whole may make a recommendation for a child's program. Upon the record before me, I find that the CSE chairperson lacked the authority to change the child's mathematics IEP goals following the March 26, 1991 meeting.

Petitioners also assert that at the May 28, 1991 CSE meeting, the chairperson presented goals for the child which had been prepared in advance of the meeting. The chairperson testified that neither she nor any other CSE prepared goals in advance of the meeting, but that she used the child's current IEP as a basis for discussing the proposed IEP. The hearing officer found that petitioners had been afforded an opportunity to participate in the development of the child's IEP goals. Upon the record before me, I concur with the hearing officer's finding that petitioners' rights had not been violated.

Petitioners assert that respondent violated the provisions of the Individuals with Disabilities Education Act (20 USC 1400 et seq.) by failing to convene a meeting of the CSE despite knowing of the child's academic problems in the Fall of 1990. Federal and State law requires each school district to review and revise, at least annually, each child's IEP (20 USC 1414 [a][5]); Section 4402 [1][b][2] of the New York State Education Law). The record reveals that the child's resource room teacher and some of his regular education teachers met with petitioners, as did respondent's director of special education, during the Fall of 1990 and early Winter of 1991, in an effort to devise ways to improve the child's performance. The mere fact that the CSE chairperson was aware of these meetings does not lead me to conclude that respondent violated either Federal or State law by not convening a CSE meeting until petitioners requested a meeting in February, 1991.

Petitioners assert that the hearing officer erred by not finding that the child should have been provided with consultant teacher services during the 1990-91 school year and by not directing respondent to make provision for such services in the child's 1991-92 IEP. They further assert that the child's needs are clearly served through direct and indirect consultant teacher services, rather than through resource room services. In essence, petitioners assert that respondent has failed to provide an individualized program of instruction because the child's regular education teachers did not modify their instructional techniques and materials to accommodate the child's learning style. The record reveals that the child was provided with preferential seating in his class and was allowed to use the test modifications set forth in his IEP. The record further reveals that the child's seventh grade resource room teacher consulted with the child's regular teachers. However, none of his teachers who testified at the hearing described any specific modifications which they had made to address the child's visual perceptual and organizational difficulties, except for the resource room teacher who testified that she arranged for the child to use graph paper, so that he could properly align his numbers for mathematics. The child's mathematics teacher testified that it was not the function of a resource room teacher to tell the mathematics teacher how to teach.

I find that the resource room program, as implemented by respondent's staff, was inadequate to meet the child's needs. There is little evidence that the resource room addressed the child's need for remediation, reinforcement of previous learning, or development of strategies to compensate for his learning disabilities. Instead, the resource room served primarily to assist the child in completing his regular education class assignments and as an alternative site for taking tests. However, I do not conclude that the use of less restrictive consultant teacher services, as an alternative to resource room services, would meet the child's needs. The child clearly requires remediation which cannot be satisfactorily accomplished while in regular education classes, even with the services of a consultant teacher. In preparing an IEP for the 1992-93 school year, the CSE must determine whether the child's needs can be met with one or more periods per day of resource room, provided in accordance with the tenor of this decision.

With regard to petitioners' request for reimbursement for the cost of the independent educational evaluation which they obtained, the hearing officer held that petitioners were not entitled to reimbursement because they had not advised respondent in advance of their intention to seek an evaluation, and because respondent's evaluation was appropriate. The record reveals that the independent evaluation was performed on February 27, 1991, and the results of the evaluation were shared with the CSE at its March 26, 1991 meeting. The child's mother testified that petitioners had not initially sought reimbursement for the evaluation, but decided to seek reimbursement after they became aware of what the CSE had done to update its triennial evaluation of the child. Petitioners raised the issue of reimbursement in their request for an impartial hearing. Although the Commissioner of Education has previously held that a school district may not be charged with the cost of an independent evaluation unless the parents have provided the district with prior notice of their intention to obtain such an evaluation (Matter of a Handicapped Child, 25 Ed. Dept. Rep. 185), I have previously held that neither the Federal regulation (34 CFR 300.503 [b]) nor State regulation (8 NYCRR 200.5 [a][1][vi][a]) requires that parents provide prior notice of their intention to seek an evaluation (Application of a Child with a Handicapping Condition, Appeal No. 90-1). However, I find, as did the hearing officer, that respondent's evaluation of the child was appropriate.

The child's triennial evaluation, which was completed in March 1990, adequately described the child's learning disability and attention deficit, as well as their effects upon the child's educational performance. The psychological evaluation described how the child functioned intellectually and how his disability would affect his learning. The educational evaluation not only presented the child's level of achievement in reading, mathematics and written language, but analyzed his performance of various tasks, and explained his needs for assistance. While noting that the child's overall score on the mathematical component of the evaluation was consistent with his grade level, the evaluator cautioned that the child had been tested under ideal conditions and that his performance could be affected by his difficulties in focusing on task. The independent evaluation focused on the child's cognitive functioning with a more detailed analysis of the child's skills and deficits in mathematics. However, the results reached in the independent evaluation are consistent with those obtained in respondent's triennial evaluation, and the independent evaluation did not provide significant new information to the CSE.

With regard to petitioner's request for reimbursement for the child's mathematics tutor, the record reveals that petitioners initially raised the issue of a mathematics tutor for their child at a meeting with respondent's director of special education on February 26, 1991, and a subsequent letter to the director. At the hearing, the director expressed his belief that the issue of a tutor was to have been taken up at the March 26, 1991 CSE meeting. However, the CSE did not address the issue of a tutor at this meeting. Petitioners engaged the services of a State certified special education teacher, who tutored the child for two hours per week from April 16 through June 13, 1991. Petitioners paid the tutor the sum of $720.

A board of education may be required to pay for educational services obtained by 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 parent's claim (School Committee of the Town of Burlington v. Department of Education, Massachusetts; 471 U.S. 359; Hiller v. Brunswick CSD, 687 F. Supp. 735; Application of a Child with a Handicapping Condition, Appeal No. 90-8). In this instance, I find that the services provided by respondent were inadequate, because of the failure to provide adequate remediation and to make curricular modifications to meet the child's needs. There does not appear to be any dispute that the tutorial service was useful. The record reveals the pedagogical opinion concerning the child's need for remedial mathematics in the 1991-92 school year, if he had not received tutoring during the preceding school year. Accordingly, I find that equitable considerations favor the reimbursement of petitioners for the services of the tutor.

The last issue to be addressed is petitioners' request for tuition reimbursement for the child's attendance at the Windward School during the 1991-92 school year. Petitioners' claim for reimbursement is subject to the same criteria as used to determine their request for reimbursement of their expenditures for the services of a tutor. In view of the inadequacy of the child's IEP for the 1991-92 school year and respondent's corresponding inability to demonstrate that it had offered an appropriate program for such school year, I find that petitioners have satisfied the first part of the three-part test for reimbursement. However, I must find that petitioners are unable to demonstrate that the education services which they obtained are appropriate.

It is well settled that parents may not be reimbursed for their tuition expenditures at a school which has not been approved by the New York State Education Department for the education of children with handicapping conditions (Tucker v. Bayshore Union Free School District, 873 F. 2d 563; Hiller v. Brunswick CSD, supra; Lombardi v. Nyquist, 63 AD 2d 1058, lv. to app. den., 45 NY 2d 710; Application of a Child with a Handicapping Condition, 28 Ed. Dept. Rep. 211). The Windward School has not been approved by the State Education Department as a private school with which school districts may contract for the education of children with handicapping conditions.

Petitioners assert that they are entitled to reimbursement, not withstanding the holding in the Tucker decision, because they, rather than respondent, placed the child in the unapproved school. They rely upon the recent decision of the United States Court of Appeals for the Fourth Circuit in Carter v. Florence County School District, (18 IDELR 350), which makes a distinction between parent initiated placements and school district initiated placements. However, I find that I am bound by the Second Circuit's Tucker decision, which factually was based upon a unilateral parental placement of a child. Accordingly, I must decline petitioners' invitation to adopt the holding in the Fourth Circuit's Carter decision. Petitioners further assert that they should receive tuition reimbursement because of respondent's numerous procedural violations. I find that there is no basis in the record for such a conclusion (Hiller v. Bd. of Ed. Brunswick CSD, [U.S.D.C., N.D., N.Y., 1990] 16 EHLR 1246).

I have considered petitioners' other assertions, which I find to be without merit.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that within 30 days after the date of this decision, respondent's committee on special education shall prepare the child's IEP for the 1992-93 school year, in accordance with the tenor of this decision; and

IT IS FURTHER ORDERED that within 30 days after the date of this decision, respondent shall reimburse petitioners in the amount of $720 for private tutoring in mathematics provided to the child during the months of April, May and June, 1991.