93-013

Petitioner appeals from the decision of an impartial hearing which upheld the recommendation of respondent's committee on special education (CSE) that petitioner's child be enrolled for the 1992-93 school year on a 12-month basis in respondent's specialized instructional environment-V (SIE-V) program with a child to adult ratio of 12:1+1, and which denied petitioner's request for reimbursement of tuition paid for the child's attendance at a private school which she selected. The appeal must be sustained.

Petitioner's child, who is 16 years old, has Down Syndrome. In tests of her cognitive abilities which were performed in 1987 and 1990, the child received verbal IQ scores within the moderate retarded range, while her performance IQ scores were within the mildly retarded range. On both occasions, the child's full scale IQ was found to be in the moderately retarded range, and she exhibited significant delay in visual-motor perception skills. There is no dispute about the child's classification as mentally retarded.

In 1979, the child entered a private pre-school program at public expense pursuant to a Family Court Order under the provisions of the former Section 236 of the Family Court Act. In March, 1982, the child, then 5 years old, was referred to the CSE of Community School District 20 in which she resides, so that the CSE could recommend an appropriate program for the 1982-83 school year. The CSE recommended that the child be classified as mentally retarded, and that she be placed in a special education class in P.S. 205. Petitioner did not accept the CSE's recommendation and enrolled the child at her expense in the St. Brendan's School of the Archdiocese of Brooklyn, a State approved school for the instruction of children with disabilities. In June, 1983, petitioner requested that respondents pay for the child's tuition at St. Brendan's. After reviewing a medical report concerning the child's heart murmur, the CSE recommended that the child attend class in a barrier-free school. Respondent was not able to offer an appropriate placement on a timely basis and became obligated to pay for the cost of the child's enrollment in St. Brendan's School in accordance with the order of the Court in Jose P. et al. v. Ambach et al. (79 C 270, USDC ED NY, 1982). The child remained enrolled in St. Brendan's at respondent's expense through the 1987-88 school year.

For the 1988-89 school year, the CSE of Community School District 21 recommended that the child be enrolled in a barrier-free Modified Instructional Services-I (MIS-I) program with a child to adult ratio of 12:1 and receive related services and the services of a health aide. However, petitioner enrolled the child in another private school for the 1988-89 school year. For the 1989-90 school year, the CSE again recommended a public school placement for the child. Petitioner requested a hearing to review the CSE's recommendation but withdrew her request after respondent agreed to pay for the child's continued placement in a private school.

In February, 1990, the child's triennial evaluation was performed. A school psychologist reported that the child displayed relative strength in mathematical reasoning and assembly skills and relative weakness in her fund of general information, abstract reasoning, verbal concepts and sequencing. The school psychologist noted that the child displayed deficits in her gross and fine motor coordination, and significant delays in her visual-motor perception skills. The school psychologist also reported that the child did not display any management problems, except for occasional restlessness and distractibility. Although the child was almost 13 years old when her educational evaluation was completed, her expressive language skills were found to be approximately equivalent to those of a 6 and 1/2 year old child, while her receptive language skills were reported to be equivalent to those of a child of slightly less than 6 years of age. The child's auditory and visual-memory skills were described as very poor for her age. Although the child displayed a significant delay in her visual-motor skills, she nevertheless could write in manuscript and cursive. The child was able to write three sentences independently, with good grammar and syntax but with poor spelling and punctuation. The child's reading and mathematic skills were found to be at the second grade level. The educational evaluator had noted that the child had demonstrated progress in all academic areas since her last triennial evaluation in 1987.

For the 1990-91 school year, the CSE recommended that the child be enrolled in the MIS-I program, and that she receive speech/language therapy and counseling as related services. In September, 1990, petitioner transferred the child to another school of the Archdiocese of Brooklyn which had a state approved program for children with disabilities. Petitioner rejected the recommendation of the CSE, and requested that an impartial hearing be held to review the CSE's recommendation. In March, 1991, an impartial hearing officer held that the recommended MIS-I program was appropriate to meet the child's needs. The child remained in the private school at petitioner's expense for the 1990-91 school year.

In June, 1991, the CSE recommended the MIS-I program for the child during the 1991-92 school year, and a specific placement for the child was offered in the Fort Hamilton High School. Petitioner did not accept the recommendation. A hearing was requested, but was not held because respondent ultimately offered to pay for the child's tuition in an appropriate private program under the Court Order in Jose P., supra. The child remained in the private school which she had attended during the 1990-91 school year. In December, 1991, the CSE revised the child's individualized education program (IEP) to reflect the fact that the child was attending the private school. In doing so, it recommended that the child be in a class with a child to adult ratio of 12:1+1. However, respondent rejected petitioner's request for payment of tuition, on the ground that the private school was not barrier-free.

In a January, 1992 progress report, the child's private school teacher reported that the child could answer certain comprehension and sequencing questions about texts which she had read, and estimated that the child was reading at a 2.6 to 3.5 grade equivalent level. The teacher further reported that the child could add and subtract double digit numbers and was learning to multiply. The teacher estimated the child's mathematical skills were also at the 2.6 to 3.5 grade level. With regard to the child's social interaction, the teacher reported that the child often chose to play alone, but had begun to converse with her peers.

On May 4, 1992, the CSE recommended that the child be placed in the 12:1+1 SIE-V program on a 12-month basis, with speech/language therapy twice a week and counseling once per week. In the management needs portion of the child's IEP, the CSE reported that the child required placement in a barrier-free school. The CSE also reported on the child's IEP that it had considered the child's placement in the less restrictive 12:1 MIS-I program, but found that the child required a small, well structured environment. The CSE did not explain the basis for its recommendation of a 12-month program (cf. 8 NYCRR 200.6 [j]). Respondent offered petitioner a SIE-V class in P.S. 721 on Staten Island.

By letter dated June 24, 1992, petitioner rejected the recommended placement on the grounds that the child should attend a school closer to her home in Brooklyn and that petitioner preferred a more academic program. In July, 1992, petitioner provided the CSE with a physician's note in which the physician opined that the child could climb a maximum of 25 stairs once per day, and that she did not require a barrier-free school. A representative of the CSE, in a letter to petitioner dated August 18, 1992, stated that under respondent's policy a barrier-free building was required if a child could not exit a school building promptly during an emergency, and that respondent did not have any SIE-V program in a barrier-free building in Brooklyn. Petitioner asked to see the proposed program, before agreeing to the CSE's recommended placement. On September 19, 1992, she visited P.S. 721. However, she unilaterally enrolled the child in a State approved program for children with disabilities in Bishop Ford High School, and requested that an impartial hearing be held.

The hearing commenced on December 4, 1992 and concluded on January 21, 1993. In a decision dated February 18, 1993, the hearing officer held that the program recommended by the CSE was appropriate to meet the child's needs. The hearing officer found that the CSE had established that the child would be appropriately grouped for instructional purposes, although the CSE had presented a profile of a homeroom class in P.S. 721 and information that the oldest child in the class was slightly more than three years older than petitioner's child. The hearing officer did not reach the issue of the appropriateness of the private school in which petitioner had placed the child for purposes of petitioner's tuition reimbursement claim, because the hearing officer found that respondent had offered an appropriate program.

Petitioner asserts that the hearing officer erred in finding that respondent had met its burden of proof about the SIE-V program in P.S. 721. Respondent bears the burden of establishing the appropriateness of the program recommended by its CSE (Matter of Handicapped Child, 22 Ed. Dept. Rep. 487; Application of a Child with a Handicapping Condition, Appeal 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 the evaluations to identify the child's needs, provides for the use of appropriate educational 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 needs (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 the CSE has not adequately assessed the child's needs with regard to her physical limitations, if any, and her vocational skills and needs.

The record reveals that the child has a congenital heart murmur and a hernia. As a result, the child's IEPs have noted that the child has limited mobility and is not able to carry heavy objects. When the child was in elementary school, the CSE recommended that the child have the assistance of a health aide. In November, 1988, the child's cardiologist advised the child's pediatrician that the child was essentially asymptomatic, except for her heart murmur, and that her activities need not be restricted. Relying upon the cardiologist's

opinion, the CSE concluded in May, 1990, that a health aide was no longer required for the child. However, there is no evidence in the record of a physical examination of the child, which is a required component of the triennial evaluation performed in 1990 (8 NYCRR 200.4 [e][4]). The child's IEP for the 1992-93 school year refers to a physical examination of the child on March 18, 1991, but the results of such an examination are not in the record. An accurate and current assessment of the child's physical needs is especially significant in this instance because the CSE has recommended that the child be enrolled in a program in a school which would not be the least restrictive environment for the child if the child did not, in fact, need to attend school in a barrier-free building. All of the children who attend P.S. 721 are disabled, and the school is not in Brooklyn where the child resides. I find that when the CSE received the physician's July, 1992 note after it had made its recommendation, it should have ascertained the child's current health status and reconsidered its recommendation.

Although petitioner asserts that the hearing officer erred in not removing the barrier-free school limitation from the child's IEP and urges that I do so, I find that on this record I cannot grant the requested relief. The physician's note which petitioner provided to the CSE in July, 1992 does not reveal the medical basis for the physician's conclusion that the child does not require a barrier-free building, or that the physician was even aware of the prerequisite criteria necessary to determine whether a child should be in a barrier-free building. An opinion from the child's pediatrician, dated October 26, 1992, that the child no longer requires a barrier-free building is similarly deficient. However, the cardiologist's November, 1988 letter together with the two more recent physician's notes do afford a basis for requiring the CSE to probe further and reconsider the child's physical needs.

I find that 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 now 16 years old, and must begin to prepare for an appropriate vocational career. In June, 1991, an educational evaluator performed a brief assessment of the child's vocational interest. However, the evaluator reported that the child's responses to questions about her interests were impulsive and that the child had expressed great interest in everything suggested to her by the evaluator. This assessment is inadequate. Respondent must provide a more comprehensive assessment of the child's skills and needs, so that a suitable vocational education program may be included as part of her IEP.

Each program and/or placement recommendation by a CSE must be consistent with the requirement of least restrictive environment. In the spectrum of programs and placements which a school district must provide, a special class with a teacher and an aide is more restrictive than a special class without an aide, and is to be used only when the management needs of the children interfere with the instructional process to the extent that an additional adult must be in the classroom (8 NYCRR 200.6 [g][4][i]). The evidence in the record of the child's management needs fails to support so restrictive a placement as a 12:1+1 class. I find that the CSE has not offered the child a program which is the least restrictive environment for her.

State regulation requires that children in special education classes be appropriately grouped, using the criteria of levels of academic achievement and learning characteristics, levels of social development, levels of physical development, and the management needs of the children (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 No. 91-26; Application of a Child with a Handicapping Condition, Appeal No. 91-28). In this instance, respondent simply placed in evidence the profile of a SIE-V class in P.S. 721, which it identified as a homeroom class. None of respondent's witnesses could testify that the class represented in the profile was in fact the class recommended by the CSE. Although a guidance counselor at P.S. 721 testified that children are assigned to specific special classes by the assistant principal, the assistant principal testified that he could not identify the group of children represented in the profile. The assistant principal further testified that a child of the age of petitioner's child would most likely be placed with a younger group of children than the group represented in the profile. Upon the record before me, I find that respondent failed to demonstrate that the CSE had recommended that the child be placed in a class with children having similar needs and abilities. In view of the above, I need not reach petitioner's claim that the hearing officer erred in not signing a subpoena prepared by petitioner and intended to compel the assistant principal to prepare the profile of another class which he had shown to petitioner on September 19, 1992, when she visited P.S. 721.

The final issue to be determined is whether petitioner is entitled to receive reimbursement for the tuition of the child at the Bishop Ford High School for the 1992-93 school year. 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 parent 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 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 Burlingtoncriteria has been satisfied.

Although the hearing officer did not reach the issue of the appropriateness of the private school selected by petitioner, I am not precluded from doing so, provided that the record before me is adequate to afford a basis for reaching a conclusion about the school's appropriateness (Burlington, supra). I find that the record is adequate for that purpose. The private school's program as described by a representative of the school at the hearing, would address the child's academic and social needs as set forth on her IEP. Although the private school's vocational education opportunities are more limited than those which are available at P.S. 721, that fact is not dispositive, in view of the failure of respondent to adequately assess the child's vocational skills and needs. Upon consideration of the profile of the class in which the child is presently enrolled, I find that the other children in the class have abilities and needs which are similar to those of petitioner's child. The representative of the private school testified that the children in the special education class do eat lunch with their non-disabled peers and are involved in school assemblies and after-school activities with their peers. I find that the private school would provide a less restrictive environment than that offered by the CSE. Finally, the record demonstrates that at the private school the child would not be required to climb more than the maximum limit of 25 stairs established by the child's physician in July, 1992. Accordingly, I find that petitioner has satisfied the second portion of the Burlington criteria.

Lastly, I find that equitable considerations support petitioner's claim for tuition reimbursement. Although petitioner had already enrolled her child in the private school prior to visiting P.S. 721, that fact does not demonstrate bad faith, and there is no evidence in the record of petitioner's failure to cooperate with the CSE.

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 Bishop Ford High School for the 1992-93 school year, and shall reimburse petitioner for her expenditures for tuition since September 1, 1992 to date, upon her submission of proof to respondent of such expenditures.