93-015

Petitioners appeal from the determination of an impartial hearing officer which upheld the recommendation of respondent's committee on special education (CSE) that petitioners' child should be placed in a special class of the Southern Westchester Board of Cooperative Educational Services (BOCES) for the 1992-93 school year, and which denied petitioners' request for reimbursement of tuition paid for the child's attendance at a private school selected by petitioners. The appeal must be sustained.

Petitioners' 11 year old child is classified as emotionally disturbed. The child's classification is not in dispute. During kindergarten in the 1987-88 school year, respondent provided speech therapy to the child, although he was not classified as a child with a disability. In April, 1989, the child, in the first grade, was referred to a school psychologist for an evaluation at the request of petitioners, his teacher, and a private psychologist who was counseling the child to remediate the child's stuttering. The child was found to have above average cognitive skills, although he was described as very weak in making common sense judgments. The psychologist noted that the child had occasional difficulty with word retrieval and that he exhibited below average graphomotor skills. The psychologist also reported that the child exhibited an erratic ability to attend, i.e. pay attention. In projective tests, the child revealed intense feelings of hostility and preoccupation with destructive fantasy. The psychologist reported that the child had intensive anxiety and uneasiness in the face of loss of control. Although the school psychologist who conducted the psychological evaluation reported that further investigation was warranted, he did not recommend that the child be referred to the CSE.

While in third grade during the 1990-91 school year, the child was referred to the CSE by his classroom teacher, who was concerned about the child's speech and classroom behavior. A social history conducted in January, 1991 reported that the child displayed an intense sibling rivalry with his younger sister and had stormy relations with his peers. In a psychological evaluation conducted in February, 1991 the child's full scale IQ was reported to be in the superior range. With regard to the child's speech, the psychologist noted that in addition to stuttering, the child had a minor problem putting words in grammatical order. Noting the child's perceptual accuracy was low, the psychologist opined that the child's perception was clouded by fantasy. The child was described as very unconventional in his thinking and he was reported to be especially hostile to authority figures. The psychologist reported that the child took things very personally and projected blame on others. Noting that a childhood fever, a childhood accident, and the possibility of the child having been exposed to lead poisoning could have affected the child neurologically, the psychologist recommended that the child receive a neurological evaluation. The psychologist further recommended that the child receive a psychiatric evaluation, and that the CSE consider a program of special education for the child.

In an education evaluation conducted in January, 1991, the child was found to be two years above grade level in letter-word-identification, passage comprehension, and reading vocabulary skills. The child's mathematical calculation skills were found to be at grade level, while his applied problem solving skills were found to be approximately three years above grade level. The child's expressive writing and mechanics of writing skills were found to be slightly below grade level, which the evaluator opined could be the result of the child's deficit in graphomotor skills. The educational evaluator recommended that the child be placed in a class where he could receive individual instruction and therapeutic support for his emotional problems. The educational evaluator further recommended that the child receive speech/language therapy. During an observation of the child in class conducted in February, 1991, it was reported that the child did not pay attention during a significant portion of the class period.

On February 13, 1991, the CSE recommended that the child be classified as emotionally disturbed, and that he receive individual counseling twice per week while remaining in a regular education third grade class. In a private neurological evaluation conducted in March, 1991, a physician opined that the child's behavioral difficulties, attention deficit disorder, and obsessive/compulsive tendencies and habits were typical of a youngster having a form of Tourette's Syndrome. The physician recommended a therapeutic trial of medication.

Although respondent did not obtain a psychiatric evaluation as recommended by its school psychologist, the record reveals that the child was in therapy with a private psychiatrist from March, 1991 through the Summer of 1992. The psychiatrist diagnosed the child as having Asperger's Syndrome, a form of autism which is typically manifested by inflexibility and an inability to relate well to others.

In June, 1991, the child's teacher reported that the child's academic performance was satisfactory although he needed reinforcing in his mathematic skills. The teacher further reported that the child was very disorganized and did not complete tasks. The teacher stated that the child had related to some boys in his class, but did not have satisfactory relationships with adults in school. For the 1991-92 school year, the CSE recommended that the child be placed in a therapeutic support class with a child to adult ratio of 6:1+1 in the same elementary school which he had previously attended. The CSE further recommended that the child receive individual counseling once a week and group counseling once a week. The child's individualized education program (IEP) provided that the child would be mainstreamed for physical education, music, art, and lunch.

At the hearing, the child's special education teacher testified that the child had been successful in all major academic areas, and that his behavior in her class, while oppositional, had improved from his behavior in third grade. In a written report, the teacher noted that the child had generally completed his school work and homework, although he often completed assignments with limited effort. The teacher further testified that the child had been informally mainstreamed for science, and that his academic performance and behavior in that class had been satisfactory. The teacher also testified that the child had been successfully mainstreamed for art, music, library and physical education, although the child had more behavioral difficulties during less structured activities. At the hearing, the child's mother testified that the child was suspended from school twice in March, 1992, for striking his teacher and for striking another child.

The school psychologist who counseled the child during the school year reported that it was nearly impossible for him to get the child to talk about his problems during individual counseling. The school psychologist further reported that during group counseling, the child continued to display problems with his peers and with authority figures, and that he exhibited low self-esteem. A social worker who participated in the child's group counseling testified that the child's mood and affect shifted unpredictably. Nevertheless, the school psychologist reported that the therapeutic support program had been extremely effective in motivating the child to complete his classwork and homework. However, he reported that enforcing limits on the child's behavior had provoked tremendous anger in the child. With respect to the child's self-esteem, the school psychologist opined that the child's placement may have done more harm than good.

The CSE met on May 13, 1992 to conduct an annual review. The child's mother suggested the possibility of placing the child in a private regular education program. The CSE adjourned the meeting without making a recommendation. On June 1, 1992, the child was suspended from school after two incidents in which he allegedly struck out at a teacher and left school premises without permission. On June 9, 1992, the CSE recommended that the child be placed on home instruction for the remainder of the 1991-92 school year. Petitioners accepted the recommendation. The CSE further recommended that the child remain in the therapeutic support program for the 1992-93 school year, with mainstreaming in social studies, science, art, music, library, and physical education. The CSE also recommended that the child continue to receive individual and group counseling.

By letter dated June 23, 1992, petitioners informed respondent that they intended to enroll the child in a private school in New York City and requested that respondent provide transportation. In a subsequent letter dated July 24, 1992, petitioner requested that an impartial hearing be held to review the CSE's recommendation. After discussion between the attorneys for the parties, it was agreed that the CSE would reconsider the child.

On August 18, 1992, the CSE recommended that the child be placed in a 6:1+1 therapeutic support program operated by the BOCES in respondent's middle school, for fifth grade during the 1992-93 school year. The CSE again recommended that the child receive individual and group counseling, but it did not recommend that the child be mainstreamed for any subject.

A hearing scheduled for August 24, 1992 was rescheduled to be held on September 2, 1992, in order to permit petitioners to examine the BOCES class profiles. On August 20, 1992, petitioners received profiles of possible BOCES classes. By letter dated August 22, 1992, petitioners informed respondent that they were enrolling the child in the Child School, a State approved private school for the instruction of children with disabilities and requested that respondent provide transportation for the child. On August 30, 1992, petitioners received another set of class profiles for the BOCES classes, which included a description of the management needs of the children in such classes.

On September 2, 1992, the parties held an off-the-record discussion with the hearing officer before the hearing was convened. By agreement, the hearing officer annulled the CSE's August 18 recommendation, because the child's teacher was not present at the CSE meeting on that date (Application of a Child with a Handicapping Condition, Appeal No. 92-42). It was further agreed that petitioners would consult with their professional advisers about whether to allow the child to undergo a BOCES intake evaluation on September 8, 1992, and that the CSE would meet on September 15, 1992 to make a recommendation. The hearing officer retained jurisdiction in the event that petitioners disagreed with the recommendation to be made on September 15. The child did not undergo an evaluation by BOCES. When the CSE met on September 15, 1992, it recommended that the child be placed in the BOCES therapeutic support program, with no mainstreaming. The child's IEP provided that the BOCES class would have a child to adult ratio of 8:1+1. The IEP also provided that the child would receive individual and group counseling.

By letter dated September 22, 1992, petitioners requested a hearing to review the September 15 recommendation of the CSE. The hearing commenced on October 8, 1992 and was completed on December 15, 1992.

In a decision dated February 15, 1993, the hearing officer held that the recommended BOCES placement was appropriate, and rejected petitioners' contention that the CSE had delegated its responsibility to select an appropriate placement to the BOCES. The hearing officer also rejected petitioners' arguments that the CSE had failed to offer a program on a timely basis, that the child's IEP was inadequate and that the CSE had failed to give petitioners adequate notice of their parental rights.

Petitioners assert that the hearing officer erred in failing to find that respondent had not given petitioners adequate notice of their parental rights, because the notice which they received did not disclose what options the CSE had considered and the reasons for rejecting the other options, did not inform petitioners of their right to obtain attorneys' fees if they prevailed in administrative proceedings to review the CSE's recommendation, and set forth inaccurate information about the availability of low-cost legal assistance.

The notices to petitioners which accompanied the CSE's recommendations after the June 9, 1992 and September 15, 1992 CSE meetings are in the record. Neither notice states that parents may recover attorneys' fees, or lists any alternatives considered by the CSE. State regulation requires that such notices inform parents and legal guardians that courts may award attorneys fees to the parents or legal guardians under certain circumstances (8 NYCRR 200.5 [a][1][xi]). I find that the two notices did not comply with the regulatory requirement. Whenever a school district proposes to change, or refuses to change, a child's placement, Federal and State regulations require that the written notice provided to parents must include a description of any options considered by the school district and the reasons why those options were rejected (34 CFR 300.505 [a][2]; 8 NYCRR 200.5 [a][4]). The record reveals that other options were discussed at the June CSE meeting, but does not reveal what options other than the BOCES program were discussed at the September meeting. I find that respondent did not comply with the regulatory requirement with regard to the notice sent after the June CSE.

The notices list six sources of free or low-cost legal assistance. At the hearing, the child's mother testified that she had telephoned some of the agencies listed as sources of free or low-cost legal services in the two notices, and that such services were not available. State regulation requires that the notice of a CSE's recommendation must indicate that the parent may be able to obtain free or low-cost legal assistance and include the names, addresses and telephone numbers of agencies where such services may be obtained (8 NYCRR 200.5 [a][4][ii][c]). Upon the present record, it is not possible to ascertain whether legal services cannot be obtained from all of the sources listed in respondent's notices, although I note that the listing of the Office of Counsel of the State Education Department is clearly erroneous (Application of a Child with a Handicapping Condition, Appeal No. 91-1). Respondent must make a good faith effort to verify the availability of services from the sources listed in its notices (Application of a Child with a Handicapping Condition, Appeal No. 91-16).

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. Rep. Dept. Rep. 487; Application of a Child with a Handicapping Condition, Appeal 92-7; Application of a Child with a Disability, Appeal 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 Disability, Appeal No. 93-9; Application of a Child with a Disability, Appeal No. 93-12).

Petitioners assert that the child's IEP is deficient because it is not based upon a current evaluation of the child, it fails to set forth an adequate description of the child's present levels of performance, and fails to provide annual goals which reflect the child's present levels of performance. The child's last evaluation occurred in 1991. Federal and State regulations require that a child be re-evaluated at least every three years (34 CFR 300.534 [b]; 8 NYCRR 200.4 [e][4]). However, a child must also be evaluated before any significant change in his/her placement (34 CFR 104.35 [a]). During the 1991-92 school year the child was mainstreamed for science and for special subjects. Although the CSE initially recommended a similar program for the child for the 1992-93 school year, it subsequently recommended the BOCES program with no mainstreaming, not even for lunch. I find that the CSE's recommendation involves a significant change in the child's placement. The record does not reveal what, if any, re-evaluation the CSE conducted to support such a significant change in the child's program.

Federal and State regulations require that a child's IEP report the child's present levels of performance (34 CFR 300.346 [a][1]; 8 NYCRR 200.4 [c][2][i]). The child's IEP for the 1992-93 school year reported the child's performance for reading and mathematics in terms of percentile scores on a standardized test, and did not reveal the grade level equivalents for those scores. At the hearing, the CSE chairperson testified that it was her understanding that the child read at approximately the fifth grade level and his mathematic skills were slightly below that level. However, petitioners' expert witness testified that the percentile scores reported on the child's IEP established that the child's total reading skills were at a 9.1 grade level equivalent and his total mathematic skills were at a 5.8 grade level equivalent.

Present levels of a child's performance should be provided for all areas in which the child receives special education services, in order to allow the child to be appropriately grouped with other children, to measure changes in the child's performance and to identify the child's needs, goals and objectives. Although test scores may be reported, they should be self-explanatory, and not require the use of test manuals in order for the parents to understand the scores (34 CFR 300, Appendix C, Question 36). I find that the child's percentile scores were not self-explanatory. In addition to academic skill levels, it may be necessary to include a descriptive level of the child's learning style, physical or social needs in conjunction with an academic skill area. Where the child's ability to function, rather than the child's academic ability, is the primary focus of the special education, to be provided, the IEP must reflect a similar focus. I find that the child's IEP prepared on September 15, 1992 is inadequate with regard to his present levels of performance in academic areas because it does not reflect the child's deficits for which special education is required. There is no description of the effect of the child's disability on his performance in reading, mathematics or written language. There is no description of his academic needs. The IEP does not set forth goals and objectives which address the child's failure to complete assignments, or work successfully in a group. The IEP fails to reveal which behaviors need to be changed or refocused in order for the child to achieve academic success.

The next issue is whether the CSE discharged its obligation to recommend an appropriate program for the child. That responsibility cannot be delegated to a BOCES, which is a provider of the services recommended by a CSE and approved by a board of education (Application of a Child with a Handicapping Condition, Appeal No. 91-25). At the hearing, a representative of the BOCES testified that the BOCES had not determined whether it would accept the child into its program. Respondent asserts that petitioners have thwarted the process by refusing to bring the child to a BOCES intake evaluation which had been scheduled for September 8, 1992. I will consider the effect of petitioners' alleged refusal to cooperate with the intake process in connection with their request for tuition reimbursement. However, I find that the CSE's recommendation of a BOCES program prior to a decision by the BOCES that it would accept the child is premature at best, and does not satisfy respondent's obligation to offer an appropriate program (Application of a Child with a Handicapping Condition, Appeal No. 92-3; Application of a Child with a Handicapping Condition, Appeal No. 92-25; Application of a Child with a Handicapping Condition, Appeal No. 92-32). In addition, the record reveals that the children in the BOCES program are divided on the basis of emotional and management needs into three groups for some instruction and are placed in other groups for other instruction. Petitioners were provided with profiles for two of the three groups, notwithstanding the fact that children from the third group could also be grouped with their child for some instruction. The hearing officer found, and respondent concedes, that the CSE left to the BOCES the determination of the appropriate instructional groups for petitioners' child. Therefore, even if the BOCES had accepted the child, I would still be obliged to find that respondent's CSE had not discharged its responsibility to recommend an appropriate program for the 1992-93 school year (Application of a Child with a Handicapping Condition, Appeal No. 92-25).

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 considerations support the parents' claim (School Committee of the Town of Burlington v. Dept. of Education Massachusetts, 471 U.S. 359; Application of a Child with a Disability, Appeal No. 93-1). In light of my finding that respondent's CSE did not fulfill its obligation to recommend an appropriate program for the 1992-93 school year, the first portion of the Burlington criteria has been satisfied.

At the hearing, the educational director for the Child School testified that the school is approved by the State Education Department to provide instruction to emotionally disturbed children. The record includes a profile of the child's class in the Child School, from which I conclude that the child is grouped with other children who have comparable cognitive abilities, levels of performance in reading and mathematics and similar management needs. The education director testified that the child is taught language arts, reading, mathematics, social studies, and science in a group of comparable size to that which the CSE had recommended. He further testified that the child had been academically successful and that the child had begun to participate on a positive basis in school. I find that the Child School is meeting the child's needs.

The requirement that a child be placed in the least restrictive environment applies to a unilateral parental placement 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 No. 92-30). Although there is no opportunity for mainstreaming at the Child School, I note that the BOCES program recommended by the CSE also made no provision for mainstreaming. The Child School is located in New York City. The child's mother testified that the child's travel time is approximately 45 minutes each way. The proximity of a school to a child's home is a relevant consideration in determining the least restrictive environment. However, 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 cooperated with respondent prior to September, 1992. At the hearing, the school psychologist testified that petitioners had met with him on a weekly basis throughout the 1991-92 school year. The child's mother testified that the school psychologist had suggested that petitioners consider alternative programs, and that she and the child visited the Child School in July, 1992. She further testified that although the private school had accepted the child approximately one week after their visit, petitioners did not decide to enroll the child until September 1, 1992. On September 2, 1992, the hearing officer annulled the CSE's recommendation of the BOCES program. Consequently, respondent had not offered a program as of the date when petitioners had to decide where the child should attend school for the 1992-93 school year. An appointment for the child to be evaluated by the BOCES intake staff was made for September 8. The mother testified that the child refused to go to the BOCES for an evaluation, and she decided not to try to physically force him to go to the BOCES interview. In view of the nature of the child's disability and oppositional behavior as described by respondent's school psychologist and the child's private psychiatrist, it is questionable whether any useful purpose would have been accomplished if the child had been forced to attend the BOCES interview. I find that the third portion of the Burlington criteria has also been met. 

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 Child 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.