93-012

Petitioners appeal from the decision of an impartial hearing officer which upheld the recommendation of respondent's committee on special education (CSE) that for the 1992-93 school year petitioners' child remain in a special education class in respondent's middle school for almost all of his primary instruction, and which denied petitioners' request for reimbursement of tuition which they paid for the child's attendance at a private school selected by petitioners. The appeal must be sustained.

Petitioners' child is 13 years old. The child attended nursery school for an extra year upon the recommendation of the nursery staff. Approximately two months after he entered kindergarten in 1985, the child was evaluated and found to be in need of speech/language therapy, because of deviations in his speech articulation. Speech/language therapy was provided for slightly more than one year, during which time the child was not classified as a child with a disability. During first grade, the child also received remedial support services in reading and mathematics. Upon completing first grade in 1987, the child was initially classified as learning disabled because of a deficit in his mathematical skills. The child had been referred to the CSE by his first grade teacher, who reported that the child had difficulty processing information, following directions, and remembering the sequence of numbers. The child's teacher further reported that the child demonstrated some signs of insecurity.

In a June, 1987 psychological evaluation, the child's cognitive skills were found to be in the average range. However, the child exhibited difficulty with visual perception, spacial skills, and visual-motor skills, so that he would be likely to have problems processing information visually. With the exception of mathematics, the child's academic skills were appropriate for his grade in school. The school psychologist reported that projective tests revealed that the child had some feelings of inadequacy. In the child's triennial re-evaluation completed near the end of fourth grade in 1990, the child achieved grade equivalents of 5.5 in reading, 3.6 in mathematics and 4.1 in written language. The psychologist who performed the evaluation reported that the child's performance of visual motor tasks was below age expectancy and that the child had deficits in his short-term auditory memory. The psychologist further reported that the child does not reply primarily on either auditory or visual input, and could not easily switch from one mode to the other. As a consequence, such tasks as following oral directions and writing down assignments could be difficult for the child.

In June, 1988, the CSE recommended that the child be classified as learning disabled because of deficits in his mathematical skills, the reason for the initial classification, and because it further concluded that the child had deficits with his written language skills. In October, 1988, the child's third grade teacher referred the child to the CSE, because, although the child was described as hard working, he became confused with whole group lessons and was easily distracted. A speech/language evaluation performed in December, 1988 revealed that the child had particular difficulty with auditory tasks when there was background noise. Although the child was almost nine and one-half years old, his auditory memory was only equivalent to that of a five and one-half year old child. The evaluator further reported that the child had difficulty expressing himself. In January, 1989, the CSE recommended that the child's classification be changed to speech impaired/learning disabled. The child has remained dually classified and his classification is not in dispute.

For second grade during the 1987-88 school year, the CSE recommended that the child receive one period per day of special education instruction in mathematics. For third grade during the next school year, the CSE recommended that the child's special education instruction be increased to a maximum of 90 minutes per day to provide him with assistance in mathematics and written language. In addition to special education, the child continued to receive remedial instruction in reading during third grade. However, shortly after the child entered third grade, his teacher referred him to the building level Pupil Personnel Services team (PPS) because of his distractibility and difficulty with written language. The PPS referred the child to the CSE. In January, 1989, the CSE recommended that the child's placement be changed from a regular third grade class to a special education speech/language class. In March, 1989, an independent neurological evaluation revealed that the child had an attention deficit disorder, for which the child received medication. The child remained in the special education class through the end of fifth grade in June, 1991, although he was mainstreamed for instruction in science in fifth grade. The child's score on a statewide writing test for fifth graders was in the average range.

In September, 1991, the child entered respondent's middle school for sixth grade. His individualized education program (IEP) provided that he was to receive instruction in all academic subjects within a special education program in which children with different disabilities move from class to class to receive departmentalized instruction by special education teachers. The child also received small group speech/language therapy twice per week during the 1991-92 school year. At the hearing, the child's mother testified that the child experienced difficulty coping with the academic and organizational demands of the middle school. In November, 1991, the child's physician diagnosed the child as having a peptic ulcer.

By letter dated November 12, 1991, petitioners requested that the child's school records be sent to the Norman Howard School, a private school approved by the State Education Department to provide instruction to learning disabled children. The Norman Howard School subsequently accepted the child for enrollment in the 1992-93 school year. In February, 1992, petitioners arranged for the child to receive private counseling, and they were advised by the physician who had prescribed medication for the child's attention deficit disorder to consider withholding the medication in the event the child was depressed. In March, 1992, petitioners discontinued the daily administration of the medication.

On March 10, 1992, petitioners met with the chairperson of the CSE to discuss the child's school problems. In a letter to the chairperson the next day, they requested that the CSE consider recommending the child's placement in the Norman Howard School for the 1992-93 school year. On April 30, 1992, petitioners met with the CSE, which considered material submitted by petitioners and by the child's teacher for most of his sixth grade subjects. The teacher reported that the child had experienced some difficulty in adjusting to the middle school. Nevertheless, the teacher opined that the child had gained confidence in his social, emotional and academic abilities. Although the teacher reported that the child had made progress academically, the teacher noted as areas of concern the child's difficulty in adapting to changes, the negative effect which working quickly and carelessly had on his performance, and his difficulty memorizing and retaining spelling and math facts. The teacher further opined that the child could attain a local high school diploma, with appropriate modifications of required tests. The CSE voted to further consider petitioners' request for a private school placement. Some members of the CSE subsequently visited the Norman Howard School.

In May, 1992, the child received a score slightly above the statewide reference point in mathematics and a score slightly below such point in reading on the Pupil Evaluation Program (PEP) tests administered to children in the sixth grade. Children who receive scores below the statewide reference point on the PEP tests must receive remedial instruction pursuant to State regulation (8 NYCRR 100.3 [b][3]). The record reveals that the child was absent from school because of illness on 21 days during the 1991-92 school year. At the hearing, the CSE chairperson testified that the child's absences were related to his ulcers. Notwithstanding his absences, the child received passing grades in each of his sixth grade subjects. In a May, 1992 report, the child's speech/language therapist noted that the child had achieved scores which were below those appropriate for children his age on 6 of 8 subtests of a test of the child's spoken and written language.

On June 17, 1992, the CSE recommended that the child remain in respondent's middle school for the 1992-93 school year. He was to receive primary special education instruction in communication skills, mathematics, reading and science, and regular education instruction in social studies, developmentals, i.e. home and careers, and technology, art, music, and physical education. The CSE also recommended that the child receive speech/language therapy twice per week in a group of not more than six children.

By letter to respondent's superintendent of schools dated June 23, 1992, petitioners requested that an impartial hearing be held to review the CSE's recommendation. Petitioners unilaterally enrolled the child in the Norman Howard School for the 1992-93 school year. The hearing commenced on September 30, 1992 and continued on October 5, 22 and 30, 1992.

In a decision dated January 28, 1993, the hearing officer opined that the child's IEP for the 1992-93 school year was inadequate with respect to its consideration of the child's social and emotional needs, in view of the child's difficulty in adjusting to the middle school program and the subsequent private counseling which petitioners obtained for him. The hearing officer rejected petitioners' contention that the CSE had improperly delegated its responsibilities to the building level pupil personnel services team. The hearing officer held that the program for the 1992-93 school year which the CSE had recommended was appropriate, based primarily upon a finding that the child had made satisfactory academic

progress in respondent's schools. In view of his holding that the recommended program was appropriate, the hearing officer denied petitioners' request for tuition reimbursement.

The central issue in this appeal is the appropriateness of the program recommended by the CSE for the 1992-93 school year. Respondent bears the burden of establishing the appropriateness of the program recommended by the 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, 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 93-9).

Petitioners challenge the manner in which the child's IEP was prepared, as well as the IEP's contents. They assert that the practice of having a building level PPS team make recommendations to the CSE without allowing parents to participate in the formulation of the PPS team's recommendations violates their right to participate in the development of their 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]). In New York, IEPs are prepared by CSEs, which must recommend to their respective boards of education what, if any, special programs or services children should receive (8 NYCRR 200.4 [c]). A CSE may seek information about children from building level teams, such as respondent's PPS teams, as well as from children's parents. In this instance, the CSE met twice with petitioners. At the second meeting on June 17, 1992, a draft IEP was discussed. The child's primary teacher for the 1991-92 school year discussed the child's proposed 1992-93 program in the middle school at the meeting. At that meeting, the chairperson of the CSE explained the CSE rationale not to recommend that the child be placed in the Norman Howard School. The chairperson was the only one of the three CSE members who had visited the Norman Howard School to attend the June 17, 1992 CSE meeting. While I do not reach the question of whether these facts afford a basis for challenging the CSE's recommendation developed at that meeting, I do note that they contributed significantly to the lack of confidence the petitioners express in the CSE's recommendation. The child's mother, a public school teacher in another school district, is a particularly well informed consumer who could have provided useful information for the PPS discussion and could have received information to help petitioners understand the PPS recommendation to the CSE.

Petitioners also assert that respondent's CSE has delegated to the PPS teams the CSE's responsibility to make recommendations. Although there is no direct evidence in the record to support their assertion with regard to the child's proposed program for the 1992-93 school year, the record adequately demonstrates that respondent's staff promoted the impression that decisions about mainstreaming children for particular courses were made by the PPS. The child's teacher testified at the hearing that the PPS, in consultation with the child's former and present teachers, had turned down petitioners' Fall, 1991 request that the child be mainstreamed in reading. The record reveals that the CSE chairperson was aware of petitioners' request, but did not schedule a CSE meeting to consider petitioners' request. The CSE, not the PPS, must determine the extent to which a child with a disability should participate in regular education programs (8 NYCRR 200.4 [c][2][iv]). Any change in the nature of the child's program must be recommended by the CSE (Application of a Child with a Handicapping Condition, Appeal No. 92-22; Application of a Child with a Handicapping Condition, Appeal No. 92-39). Given all those facts, it was at least imprudent for respondent not to permit the parents to participate with the PPS in formulating its recommendation to the CSE.

State regulation requires that a child's IEP report the child's present levels of performance and reveal the child's individual needs in the areas of academic achievement and learning characteristics, social development, physical development, and management needs (8 NYCRR 200.4 [c][2][i]). The levels of performance reported on this child's IEP for the 1992-93 school year are from standardized tests administered in April, 1990, when the child was in fourth grade. Although a standardized test was administered to the child in April, 1992, the results of that test were not available to the CSE when it prepared the IEP for the 1992-93 school year. At the hearing, the chairperson of the CSE conceded that the child's IEP did not set forth the child's present levels of performance. Accurate and timely information about a child's present levels of academic performance must be reported on each IEP, in order to assess a child's progress from year to year and to develop appropriate goals and objectives for ensuing years. I find that the absence of such information from this child's IEP is a serious flaw in the IEP.

Although the IEP literally reports the results of standardized tests which were administered to the child in 1990, it fails to give an adequate description of his needs for purposes of preparing goals or providing useful information to the child's teachers. The IEP does not mention the child's organizational problems, his difficulty in copying, his limited ability to auditorially discriminate in noisy settings, or his limited ability to remain focused upon tasks. Notwithstanding the child's anxiety and emotional difficulty during sixth grade, the child's IEP is conspicuously silent about the extent of those needs and fails to offer any means to address those needs.

State regulation also requires that a child's IEP lists annual goals which are consistent with the child's needs and abilities and short-term instructional objectives and evaluative criteria, procedures and schedules (8 NYCRR 200.4 [c][2][iii]). I find that the IEP does not provide goals which are related to the child's learning needs which are reported on the IEP or those needs which I have found should have been described in the IEP. Instead the IEP presents general academic goals. In addition, I note that the IEP does not include any goals for science, although the IEP provides that the child would receive primary special education in science.

Although the defects in the child's IEP require that I annul the hearing officer's decision, there are additional reasons for finding that respondent has not met its burden of demonstrating the appropriateness of the recommended program. Children in special education classes must be appropriately grouped with other children having similar needs (8 NYCRR 200.6 [a][3]). The similarity of abilities and needs may be demonstrated through the use of a profile of the children in the proposed class, together with the testimony of a witness who is familiar with the proposed class (Application of a Child with a Handicapping Condition, Appeal 92-45; Application of a Child with a Disability, Appeal 93-13). At the hearing, respondent failed to offer any profile of the children who would be in the various seventh grade classes with petitioner's child nor did it offer any specific testimony bearing on that issue.

The program which the CSE recommended is essentially a continuation of the program which the child had during the 1991-92 school year. However, the record is inadequate to ascertain the extent, if any, of the progress which the child made toward achieving his IEP goals and objectives for the 1991-92 school year. Although the child's two teachers for academic subjects during the 1991-92 school year opined orally that the child had made academic progress during that school year, those opinions are not supported by the record. Remarkably, the portion of the child's 1991-92 IEP in which the achievement of objectives during the school year must be noted is blank and unexplained. Therefore it is not possible to ascertain the effectiveness of the child's special education program or the extent of his progress. I have considered the results of the California Test of Basic Skills which was administered to the child in both fifth and sixth grade. Those results are mixed, at best, and they do not afford a basis for concluding that the child made significant progress during sixth grade.

Petitioners also object to the adequacy of the notice of the CSE's recommendation which they received. Federal regulation requires that the written notice which a local educational agency gives to a parent concerning any change in, or refusal to change, a child's educational program must include a description of any options considered by the agency and the reasons why those options were rejected (34 CFR 300.505 [a][2]). At the hearing, the CSE chairperson testified that the CSE had considered placing the child in the Norman Howard School and in a program of the local Board of Cooperative Educational Services, in addition to the program which the CSE ultimately recommended. The notice of the CSE's recommendation, which is Exhibit 131 in the record, does not refer to any alternative considered by the CSE, and is therefore defective (Application of a Child with a Handicapping Condition, Appeal No. 92-3; Application of a Child with a Handicapping Condition, Appeal No. 92-47).

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 are appropriate, and equitable consideration 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 Disability, Appeal No. 93-1). In view of my finding that respondent failed to demonstrate that it had offered an appropriate program, the first portion of the Burlington criteria has been satisfied. Although the hearing officer did not reach the issue of the appropriateness of the private school selected by petitioners, I may do so if the record before me is adequate to afford a basis for concluding that such school is appropriate.

The record discloses that the Norman Howard School provides instruction to approximately 100 children with disabilities, in grades 5 through 12. It is approved by the State Education Department to provide instruction to children who are classified as learning disabled. Since one of the child's two classifications is learning disabled, I find that petitioners may receive tuition reimbursement, provided that the school's program is otherwise appropriate (Tucker v. Bayshore UFSD, 873 F. 2nd 2d 563 [2nd Cir., 1989]). At the Norman Howard School, the child is enrolled in a seventh grade program which follows the New York State curriculum with modifications. The child is in a group of eight children who share the same classes, except for mathematics and learning laboratory. For mathematics and learning laboratory, the children receive instruction in smaller groups. The profile of those children and the testimony of the school's assistant principal establish that the children have average cognitive ability, but have reading and math levels one to two years below their grade level. I find that the needs and abilities of these children are comparable to the needs and abilities of petitioner's child.

Petitioners' child has difficulty attending, i.e. paying attention, and his learning is impaired by difficulty processing and remembering information which he receives. The child's difficulties were described at the hearing by his elementary special education teacher, who also described the methods which she had successfully used to help him overcome his disability. The testimony of the child's present teachers at the Norman Howard School similarly demonstrates an awareness of the child's special educational needs and a program for successfully dealing with those needs. Paradoxically, the program offered by respondent does not. The Norman Howard program includes providing information to the child about the nature of his disability and providing him with compensatory strategies for overcoming the affects of his disabilities.

The requirement that a child be placed in the least restrictive environment applies to unilateral placement by parents when public funding for such placement is sought (P. J. v. State of Connecticut, 18 IDELR 1010 [D.C., D. Conn., 1992]; Application of a Child with a Handicapping Condition, Appeal 92-30). Although all of the children at the Norman Howard School have disabilities, I find on the record before me that placement at the Norman Howard School is the least restrictive environment for this child at this time because of his need for the program offered by Norman Howard and no comparable program has been offered by respondent (Application of a Child with a Handicapping Condition, Appeal No. 92-3; Application of a Child with a Handicapping Condition, Appeal No. 92-25). Accordingly, I find that petitioners have satisfied the second portion of the Burlington criteria.

I must also determine whether equitable considerations favor granting the relief requested by petitioners. The record reveals that petitioners have, at all times, cooperated with respondent (Tucker v. Bayshore UFSD, supra). The child suffered significant emotional harm last year in the transition from a self-contained special class in elementary school to a departmental program in the middle school. Although various members of respondent's staff were aware of the child's emotional difficulties, respondent did not address those difficulties. The parent and the child have confidence in the Norman Howard program and none in the program offered by respondent. Nor does the record demonstrate that the respondent has taken any meaningful action to cultivate the same degree of confidence in the program recommended by the CSE. Indeed, the preclusion of the parents from participation in the formulation of the PPS recommendation fostered a climate of mistrust and lack of input. Accordingly, I find that equitable considerations support an order for tuition reimbursement.

Finally, I must comment upon the state of the record which was received by the Office of State Review. The copy of the transcript was faint, and at times difficult to read. It was also incomplete. Copies of the profiles of the children in the child's class at the Norman Howard School were not submitted with the rest of the record. Ultimately, copies of the missing pages of transcript and the exhibits were obtained only two days ago. In the future, respondent must ensure that a complete and legible copy of the record is timely provided to the Office of State Review in any future appeal.

THE APPEAL IS SUSTAINED.

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

IT IS FURTHER ORDERED that respondent shall assume responsibility for the child's tuition at the Norman Howard School for the 1992-93 school year, and shall reimburse petitioners for their expenditures for tuition from September, 1992, to date, upon submission of proof of such expenditures by petitioners to respondent.