93-009

Petitioners appeal from the determination of an impartial hearing officer upholding the recommendation of respondent's committee on special education (CSE) that for the 1992-93 school year petitioners' child should be enrolled in a regular education program in respondent's high school, with one hour per day of resource room services and two hours per week of indirect consultant teacher services. They also appeal from the hearing officer's determination that they were not entitled to receive reimbursement from respondent for their expenditures for a tutor of the child at the private high school during the 1991-92 and 1992-93 school years. In its answer, respondent cross-appeals from the hearing officer's finding that the resource room class offered to the child was inappropriate because the abilities and needs of the other children in the class were not similar to those of petitioners' child. The appeal must be sustained in part. The cross-appeal must be dismissed.

Petitioners assert that the answer should be rejected and the cross appeal should be dismissed as untimely. State regulation requires that an answer to a petition be served within 10 days after service of the petition (8 NYCRR 279.5). The record reveals that the petition was served upon respondent on February 22, 1993. The affidavit of service of the answer discloses that the answer was mailed to petitioners' attorney on March 4, 1993. I find that the answer and respondent's cross-appeal are timely.

Petitioners' child, who is 16 years old, has Down Syndrome. The child was initially classified by the CSE as mentally retarded and severely speech impaired in July, 1981, when he became eligible to enter respondent's schools. The child is presently classified as mentally retarded. In a psychological evaluation completed in May, 1992, the child achieved a verbal IQ score of 60, a performance IQ score of 46, and a full scale IQ score of 49. The evaluator reported that the child's word recognition and spelling skills were at the third grade level, and his mathematical skills were at the fourth grade level. The child was described by the evaluator as functioning in the mildly mentally retarded range, with relative strengths in expressive communication, personal daily living skills and coping skills in the socialization domain. The evaluator reported that the child's relative weaknesses were in receptive language skills, perceptual motor skills, domestic daily living skills, interpersonal relationships and basic academic achievement. There is no dispute about the child's classification as mentally retarded.

At the recommendation of the CSE, respondent began to provide the child with speech/language therapy during the 1981-82 school year, during which the child attended the private school in which he had been previously enrolled for preschool. During the 1982-83 through 1990-91 school years, the child was enrolled in a regular education program of a parochial elementary school. Respondent provided the child with speech/language therapy through the 1985-86 school year. After considering the possible enrollment of the child in respondent's resource room program for the 1986-87 school year, petitioners decided to have the child stay in the parochial school. Thereafter, respondent did not provide any special educational services. At petitioners' request, the CSE evaluated the child in 1990. However, the record does not reveal what, if any, services respondent offered to petitioners.

In September, 1991, the child was enrolled for ninth grade in the religiously affiliated Salesian High School in New Rochelle. In a letter to respondent's special education department, dated March 13, 1992, the child's father asserted that the child had been admitted to the Salesian High School, upon the condition that petitioners would pay for the services of a "resource teacher ... and coordinator with the other teachers" of the child's work, and requested reimbursement by respondent to petitioners for their expenditures for the child's resource teacher. Petitioners' expenditures for the teacher during the 1991-92 school year amounted to approximately $3300.

In response to the March 13 letter, respondent's director of special education informed petitioners that their request for reimbursement would be treated as a re-referral of the child to the CSE. On May 13, 1992, the child's social history was updated. Petitioners told respondent's social worker that the child's day in Salesian began with one and one-half hours of 1:1 instruction by his resource teacher, and that for the remainder of the school day the child attended classes in regular education courses. The record reveals that the child's ninth grade courses included global studies, mathematics, science, writing, art, computer, religion, and physical education, and that he received instruction in English from his resource teacher. The child's report card for the first marking period of the 1991-92 school year disclosed that the child received the grade of satisfactory in each of his courses. The child's mathematics teacher reported in May, 1992, that the child worked at about the fifth grade level.

On May 21, 1992, respondent's school psychologist re-evaluated the child. In addition to the IQ and achievement test results noted above, the school psychologist reported that the child's perceptual motor and graphomotor skills were his greatest non-verbal weaknesses. The school psychologist reported that the child displayed relative strength in his ability to cope with the world around him, as compared to his level of intellectual functioning. The school psychologist recommended that the child receive remedial assistance to provide proper support, organization and structure, while the child continued in an essentially mainstreamed environment, and that the child be considered for speech/language therapy to assist him with articulation. The school psychologist also recommended adding vocational components to the child's program, as the child reached the upper grades.

On June 9, 1992, petitioners and two representatives of the Salesian High School met with the CSE to discuss various programs for the child. The CSE decided that the child did not require speech/language therapy, but deferred making a specific program recommendation until a two-stage vocational assessment of the child could be completed. The CSE declined to make a recommendation about petitioners' request for reimbursement. On June 11, 1992, the child was evaluated with a Level I vocational assessment, as described in the State Education Department publication, The Vocational Assessment of Students with Handicapping Conditions. The evaluator reported that the child was an excellent candidate for vocational training.

On July 30, 1992, the CSE recommended that for the 1992-93 school year the child attend the New Rochelle High School, where he would be enrolled in regular education classes, with one period per day of resource room service and two hours per week of indirect consultant teacher services. The child's individualized education program (IEP) provides that the child would receive indirect consultant teacher services for the subjects of mathematics, social studies and science. The CSE further recommended that the local board of cooperative educational services (BOCES) be contacted to arrange for the child's vocational program and adult planning services.

In a letter to petitioners dated August 14, 1992, respondent's director of special and alternative education stated that if petitioners chose to have the child remain in the Salesian High School during the 1992-93 school year, respondent would provide the child with one period per day of resource room services in respondent's high school and two hours per week of indirect consultant teacher services through weekly conferences with the child's teachers in Salesian High School. Respondent's administrator further stated that the CSE had not recommended that petitioners be reimbursed for their expenditures for a tutor. By letter to respondent, dated August 14, 1992, petitioners expressed their disagreement with the location of the services recommended by the CSE, and requested that an impartial hearing be held to review the CSE's recommendation. The hearing began on October 5, 1992, and concluded on November 9, 1992.

In a decision dated January 12, 1993, the hearing officer held that respondent had met its burden of proving that the program in the New Rochelle High School which the CSE had recommended was appropriate. However, the hearing officer found that the resource room class recommended for the child would not be appropriate for the child because the other four children in the class had substantially higher levels of achievement in reading and written expression, and remanded the matter to the CSE to select an appropriate resource room class. With regard to petitioners' assertion that the recommended services should be provided by respondent in the Salesian High School, the hearing officer found that the child's needs did not dictate that such services be provided in the private school, and that respondent was unable, as a matter of law, to provide the services in the Salesian High School (Lemon v. Kurtzman, 403 U.S. 602). The hearing officer denied petitioners' claim for reimbursement of their expenditures for the child's resource teacher at Salesian, on the ground that the teacher was not a State certified special education teacher.

Petitioners assert that the hearing officer's decision is factually erroneous, because it states that the CSE recommended that the child receive speech/language therapy and that the child had always been in respondent's special education program. Both of the hearing officer's statements are not supported by the record. However, I note that in a letter to the parties' attorneys dated January 26, 1993, the hearing officer acknowledged that his statement about the CSE's recommendation was erroneous. Neither erroneous statement by the hearing officer affords an adequate basis for annulling his decision.

Petitioners challenge the appropriateness of the educational program which is reflected by the child's IEP prepared by the CSE. They also challenge the appropriateness of the services described in the August 14, 1992 letter of respondent's director of special and alternative education. Respondent bears the burden of establishing 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 Handicapping Condition, Appeal No. 92-39). To meet its burden, respondent must demonstrate 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][1]).

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 objectives which are related to the child's educational deficits (Application of a Child with a Handicapping Condition, Appeal No. 92-42; Application of a Child with a Disability, Appeal No. 93-1). I find that respondent failed to complete an adequate evaluation before the CSE prepared the child's IEP, and that the IEP is deficient.

State regulation requires as part of an individual evaluation that the child be observed in the child's current educational setting (8 NYCRR 200.4 [b][4][viii]). The child was not observed in class until September 24, 1992, approximately two months after the CSE made its recommendation. The CSE was aware that the child was attending the Salesian High School when it began its evaluation of the child after receiving the March 13, 1992 letter of the child's father. The child should have been observed at the private school prior to the CSE's recommendation (Application of a Child with a Disability, Appeal No. 93-1; Application of a Child with a Handicapping Condition, Appeal No. 92-26).

Respondent has also failed to adequately assess the child's vocational skills and needs, in accordance with the requirements of 8 NYCRR 200.4 (b)(4)(vii). The child is 16 years old, and must begin to prepare for an appropriate vocational career. The Level I vocational assessment which respondent performed is a rudimentary screening device. A Level II assessment, as described in The Vocational Assessment of Students with Handicapping Conditions must be performed in order to prepare an appropriate IEP (Application of Bd. of Ed. Florida UFSD, Appeal No. 92-10). After the child's vocational needs have been ascertained, a suitable vocational educational program must be a part of his IEP. The child's present IEP includes a brief reference to a vocational program to prepare the child for independence, and to adult planning services at the BOCES or through the Office of Vocational and Educational Services for Individuals with Disabilities of the State Education Department. Vocational planning for the child must begin immediately. The child's IEP must also reveal what transition services will be provided (34 CFR 300.18).

The CSE must also reconsider how the child's special educational needs should be addressed. The critical issue will be the amount of primary special education instruction which should be provided to the child. Upon the record before me, I find that the child needs primary special education instruction to develop his adaptive behavior so that he can function independently in school in following a daily schedule, and meeting his assignment responsibilities. The record demonstrates that the child will also require primary special education instruction in functional reading, functional mathematics, and written expression. The child's achievement in each of these areas is significantly delayed. He is functioning at an approximately third or fourth grade level, and is reportedly unable to express his thoughts in complete sentences. In order for the child to be able to live as independently as is possible with his disability, it is critical that he receive the specialized assistance of a special education teacher to develop these fundamental skills. In view of my finding that the child requires at least some primary special education instruction, it follows that the CSE's recommendation of a resource room program is inappropriate. State regulation defines a resource room program as:

"... a special education program for a student registered in either a special class or regular class who is in need of specialized supplementary instruction in an individual or small group setting for a portion of the school day." (8 NYCRR 200.1 [ah])

The child's IEP may not describe the child's special education program as a resource room program because the child is to receive primary, rather than supplementary, special education instruction. The CSE should consider the extent to which such instruction in reading, mathematics and writing could be provided with direct consultant teacher services (8 NYCRR 200.1 [1]), rather than in a special class.

For subjects in which the child does not require primary special education, indirect consultant teacher services may be appropriate. However, the CSE must reconsider the appropriateness of a program purportedly intended to culminate in the child's receipt of a local high school diploma, as revealed in the child's present IEP.

If the child is to attend respondent's high school, he will need some assistance in becoming acclimated to the school. At the hearing, respondent asserted that a travel trainer would be assigned to the child for this purpose. However, I note that such service is not listed on the child's IEP. The record reveals that the child has a deficit in perceptual motor skills, which is reflected in part by his handwriting. The CSE should consider whether the use of adaptive equipment, such as a word processor, would be appropriate to enable the child to meet his IEP goal for improved writing skills, and must list appropriate adaptive equipment on the child's IEP.

The annual goals on a child's IEP must be consistent with a child's needs and abilities in all areas in which a child requires special education, and must be sufficiently specific to provide direction to the child's teachers concerning the expectation of the CSE (Application of a Child with a Handicapping Condition, Appeal No. 92-21; Application of a Child with a Handicapping Condition, Appeal No. 91-25). This child's IEP goals such as "the student will increase conceptual understanding and computational skills in mathematics" and will "function as a participating/contributing member of society through development of effective interpersonal skills" are too vague to be of use in an IEP. At the hearing, the child's tutor testified that he had already achieved some of the reading and mathematic objectives set forth on the IEP prepared by the CSE. The CSE must consider whether the IEP objectives should be revised.

Respondent is required to offer each resident child with a disability an appropriate educational placement in its own schools, a public school of another district or a private school that has been approved to provide instruction to children with disabilities (Section 4402 [2] of the Education Law). When a child has been placed by his parents in a private school, Federal and State law require that boards of education make special education and related services available to the child (20 USC 1413 [a][4][A]; Section 3602-c of the Education Law). Boards of education may provide appropriate special education and related services to children unilaterally enrolled by their parents in private schools, by offering such education and services in the public schools, in private schools or at neutral sites (Bd. of Ed. Monroe-Woodbury Central School District v. Weider et al., 72 NY 2d 174). In the Weider decision, the Court Appeals stated that, under State law, school officials may fashion an appropriate program for each child within statutory guidelines and constitutional constraints.

The special education and related services which are provided to a child enrolled in a private school must be recommended by the CSE in an IEP (Application of a Child with a Handicapping Condition, Appeal No. 91-13). The IEP which the CSE prepared for the child on July 30, 1992 provides for the child to receive regular and special education in respondent's high school. There is no IEP in the record which would provide the child with services while he attended the private school during the 1992-93 school year. Although the August 14, 1992 letter by respondent's director of special and alternative education suggested that resource room and indirect consultant services could be provided to the child, that letter is not the equivalent of an IEP. Even if the IEP which the CSE did prepare were construed as being applicable for the child's attendance at the private school, it is deficient for the reasons indicated in this decision. Therefore, I find that respondent failed to meet its obligation to offer appropriate special education and related services to the child in either its high school or in the private school for the 1992-93 school year, and I will direct respondent's CSE to prepare new IEPs.

In view of my findings that respondent failed to demonstrate that it offered the child appropriate programs, either as a child enrolled in its high school or as a child enrolled in a private school and receiving dual enrollment services pursuant to Section 3602-c of the Education Law, respondent's cross-appeal from the hearing officer's finding that the composition of the resource room class was inappropriate must be dismissed.

Petitioners' request for an order directing respondent to provide two hours per day of direct and indirect consultant teacher services in the Salesian High School must be denied. The CSE must first complete its evaluation of the child, and make its recommendation for services for the child, in accordance with this decision. Although both parties urge that I reach the issue of the constitutionality of providing instructional services to the child on the premises of Salesian High School, I find that the issue is prematurely raised in the absence of an appropriate program for the child. I must also note that the record contains little information about the private school's curriculum and program (cf. Application of a Disabled Child, Appeal No. 93-3).

Petitioners also request that I direct respondent to reimburse them for their expenditures for the child's tutor in the Salesian High School during the 1991-92 and 1992-93 school years. A board of education may be required to pay for educational service 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 parents' claim (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359; Application of a Child with a Handicapping Condition, 30 Ed. Dept. Rep. 108; Application of a Child with a Handicapping Condition, Appeal No. 92-21).

I find that petitioners have satisfied the first portion of the Burlington criteria. Although petitioners did not request reimbursement for their expenditures during the 1991-92 school year until March 13, 1992, that fact is not dispositive of respondent's obligation to offer appropriate services during that school year. The child's father testified at the hearing that he had spoken with respondent's high school principal and with a former district administrator of special education about the child's needs. The father further testified that the former administrator told him that respondent did not provide the kind of services which the father sought, and that petitioners' recourse was "to go to due process". I find that the father's request for services was a parental referral of the child to the CSE, and should have been handled accordingly (8 NYCRR 200.4 [a]).

With regard to the appropriateness of the services obtained by petitioners, I am constrained to find that they have not met their burden of proof. In view of the nature of the child's disability and the tutor's testimony at the hearing about the nature of the services which she has provided, it is apparent that the tutor's instructional services were special education. Instructional services to be reimbursed under Burlington, supra must meet State educational standards (Tucker v. Bayshore UFSD, 873 F. 2d 563 [2nd Cir., 1989]). State regulation requires that special education must be provided by an appropriately certified special education teacher (8 NYCRR 200.6 [b]). The child's tutor holds State certification as an elementary school teacher, and is working towards State certification in special education. Consequently, I must find that respondent could not lawfully pay for the services of the tutor with either Federal, State or local funds (34 CFR 300.380 [b]; 34 CFR 300.15; Section 3009 of the Education Law). I do not reach the issue of whether respondent's payment for instructional service would contravene the U.S. Constitution (Application of a Child with a Disability, Appeal No. 91-3).

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

THE CROSS-APPEAL IS DISMISSED.

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

IT IS FURTHER ORDERED that within 40 days after the date of this decision, respondent's CSE shall complete an evaluation of the child and shall recommend an appropriate program for the child in accordance with the tenor of this decision.