93-038

Petitioners appeal from the decision of an impartial hearing officer which denied petitioners' request for reimbursement of tuition paid for their child's attendance during the 1992-93 school year at a private school which was not approved by the State Education Department to provide instruction to children with disabilities. The appeal must be dismissed.

Petitioners' child, who is 16 years old, attended kindergarten in the Valhalla Union Free School District. In September, 1983, the child entered the first grade in respondent's school district. In December, 1983, the child was referred to a school psychologist for an evaluation because she was reportedly experiencing academic difficulty. The child achieved a verbal IQ score of 107, a performance IQ score of 85, and a full scale IQ score of 96. Noting that there was a significant discrepancy between the child's verbal and performance IQ scores, the school psychologist reported that such a discrepancy reflected deficits in the child's sequential planning ability, spatial conceptualization, capacity for sustained effort, and part-whole relationships. The child's perceptual motor integration skills were reported to be approximately two years below her age level. The child's achievement test scores in reading, decoding, spelling, and arithmetic were all above her actual grade level. Projective tests revealed that the child was immature and anxious, and had significant organizational problems. The school psychologist recommended that the child be evaluated by respondent's learning evaluator to establish an appropriate program to remediate her educational deficits, but did not recommend that the child be evaluated or reviewed by respondent's committee on special education (CSE). The school psychologist further recommended that the child receive a comprehensive medical examination, including neurological tests.

In March, 1984, the child was evaluated by respondent's learning facilitator, who reported that the child had visual motor and sequencing deficits, and that her auditory memory appeared to be weak. The evaluator opined that the child would experience difficulty learning to read and spell in the traditional manner, and recommended that the child be placed in a multi-sensory class in which Orton-Gillingham techniques were used. With petitioners' concurrence, the child was placed in respondent's Learning Strategies Program in which she remained through middle school. At the hearing in this proceeding, respondent's director of special education testified that the Learning Strategies Program provided assistance to children who have significant organizational processing deficits, but who are not eligible to be enrolled in a special education program.

A psychiatrist who performed a neuropsychiatric evaluation performed in March, 1985, diagnosed the child as having an attention deficit disorder without hyperactivity, a developmental learning disturbance caused by minimal cerebral dysfunction, and an adjustment disorder. The psychiatrist recommended that the child and family undergo therapy, that the child receive tutoring in academic areas requiring remediation, and that consideration be given to the child's use of a stimulant medication. The psychiatrist opined that the child would function best in a small, supportive structured setting.

The record reveals that the child continued to have deficits in reading, writing, and mathematics, despite her participation in the Learning Strategies Program. She was described as having difficulty in following oral and written instructions and in organizing written materials, and requiring assistance in adjusting to various teachers and their expectations. In the sixth grade, she began to receive private tutoring and therapy. In the seventh grade during the 1989-1990 school year, the child failed English, mathematics and social studies, and was unsuccessful in those courses during summer school.

On August 6, 1990, petitioners referred the child to the CSE. In a private psycho-educational evaluation performed at White Plains Hospital Center in September, 1990 the child received a verbal IQ score of 94, a performance IQ score of 71 and a full scale IQ score of 81. The private psychologist reported that the child's vocabulary, abstract thinking, and social judgment were all at the expected level, but that the child had exhibited deficits on tests requiring rote learning and concentration. The evaluator further reported that the child had severe perceptual problems which significantly impeded her processing and integration of non-verbal information. On all measures of achievement, the child's academic skills were found to be well below the expected level. Her area of greatest weakness was reported to be mathematics. Projective tests revealed that the child did not have positive feelings about herself, and felt incapable of achieving in school. While noting that petitioners had previously preferred not having the child classified as a child with a disability, the evaluator recommended that the child be referred to the CSE and that she continue to receive psychotherapy.

On achievement tests administered in September, 1990 when she was in the eighth grade, the child's reading and mathematical skills were found to be at the mid-fourth grade level, while her spelling skills were reported to be at the seventh grade level. The child's writing skills were found to be in the first stanine. The evaluator reported that the child's processing problems, which had undermined her ability to acquire skills, appeared to involve word retrieval and visual/spatial interpretation. In view of the child's difficulties in school, notwithstanding her participation in the Learning Strategies and private tutoring, the evaluator recommended that the child receive special education assistance.

On October 4, 1990 the CSE recommended that the child be classified as learning disabled and receive resource room assistance. The CSE further recommended that test modifications, including extended time, separate locations, and the use of oral directions, be implemented for the child. The child's individualized education program (IEP) included generic annual goals and a total of 57 short-term objectives to be achieved in the resource room program.

In September, 1991, the child entered the ninth grade in respondent's high school. Her IEP provided that she was to continue to receive resource room services, and listed 46 standardized annual goals without revealing which were applicable to the child. She reportedly began cutting classes and encountered academic difficulties in October, 1991. On October 30, 1991, the child was placed by petitioners in a psychiatric hospital in Connecticut. In the hospital admission summary, the child was reported to have stated that she had become increasingly depressed since starting high school, and that conflicts between her and petitioners about her school performance and adherence to her parents' rules had escalated to the point of violence. Upon admission, the child was medically diagnosed as having a major depression and oppositional disorder, as well as a learning disability.

Respondent assumed financial responsibility for the child's instruction while she was hospitalized. Shortly before the child's discharge from the hospital, respondent's director of special education asked the hospital to allow the child's case manager to be involved in her discharge planning. However, by letter dated December 2, 1991, the child's father advised the director of special education that, upon the recommendation of the hospital staff, the child would be placed in the Winchendon School in Massachusetts. A meeting of the CSE was scheduled to be held on December 12, 1991, but was postponed at petitioners' request.

On January 16, 1992, the CSE recommended that the child's classification be amended by adding emotionally disturbed to the existing classification of learning disabled. The CSE refused petitioners' request that respondent pay for the child's tuition at the Winchendon School, which was not approved by the New York State Education Department for the instruction of children with disabilities. Instead, the CSE recommended that the child be placed in "Boces or Union Free School District or Private School approved by the New York State Education Department", and that she receive counseling twice per week. At the hearing in this proceeding, the CSE chairperson testified that the CSE had not identified a specific placement for the child, but intended to refer the child to the BOCES of Southern Westchester County, for the latter to ascertain whether it had an appropriate day program for the child.

The child remained in the Winchendon School for the rest of the 1991-92 school year. Petitioners visited an approved private school in New York, and subsequently agreed to participate in the procedure by which the BOCES determines whether it has an appropriate program. Following an interview with the child in July, 1992, the BOCES informed respondent that the BOCES Project Learn Program at the Ardsley High School would be appropriate for the child. On or about August 25, 1992, respondent's assistant superintendent orally advised petitioners that the child had been accepted for admission to the Project Learn Program. However, there is no evidence in the record that the CSE specifically recommended that the child be enrolled in the BOCES Project Learn Program. On September 9, 1992 a BOCES supervisor orally advised the CSE chairperson that petitioners had placed the child for the 1992-93 school year in a private residential school in Connecticut. The child was placed in the Forman School, which was not approved by either New York or Connecticut for the instruction of children with disabilities.

During the Fall of 1992, petitioners met with various school administrators, including respondent's superintendent of schools, but they were advised that respondent would not pay for the child's placement in the Forman School. By letter dated March 31, 1993, petitioners requested that an impartial hearing be held. The hearing was held on May 12 and June 7, 1993. In a decision dated July 14, 1993, the hearing officer held that the child should be classified as learning disabled rather than learning disabled/emotionally disturbed. He further held that respondent had failed to demonstrate that it had offered an appropriate program for the child for the 1992-93 school year, because the CSE had not specifically recommended the BOCES Project Learn Program. However, the hearing officer denied petitioners' request for tuition reimbursement on the ground that a residential placement would not be the least restrictive environment for the child.

Respondent asserts that the appeal is untimely because it was commenced in excess of 40 days after petitioners received the hearing officer's decision. State regulation provides that a petition for review of a hearing officer's decision must be served within 40 days after receipt of the decision (8 NYCRR 279.2 [b]). It is respondent's burden to prove the date of receipt of the decision by petitioners. Respondent only asserts that the hearing officer mailed his decision to petitioners on July 14, 1993. The petition in this appeal was served upon respondent on September 10, 1993. However, since respondent offers no evidence or proof of the date when petitioners received the hearing officer's decision, I must find that respondent has failed to meet its burden of proving its affirmative defense (Application of a Child with a Disability, Appeal No. 93-23; Application of a Child with a Disability, Appeal No. 93-37).

Neither party disputes the hearing officer's finding that the child should be classified as learning disabled. Accordingly, that finding will not be reviewed in this appeal (Hiller v. Bd. of Ed. Brunswick CSE et al., 674 F. Supp. 73 [N.D.N.Y., 1987]). Nor will I consider petitioners' assertions about matters which have occurred subsequent to the hearing and which relate to the CSE's recommendation for the 1993-94 school year, because petitioners have not exhausted their administrative remedy of an impartial hearing regarding those matters (Application of a Child with a Handicapping Condition, 26 Ed. Dept. Rep. 540). At the hearing in this proceeding, the hearing officer determined that he did not have jurisdiction to consider whether petitioners should receive tuition reimbursement for the 1991-92 school year. However, he did not reveal the basis for his determination. Petitioners' written request for an impartial hearing refers to the child's classification and "other related issues". The CSE recommendation, which is at issue, was prepared on January 16, 1992 and was purported to be the child's IEP for the 1991-92 school year. Accordingly, I find that the hearing officer erred and I shall consider petitioners' claims with respect to both the 1991-92 and the 1992-93 school years.

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. Dept. of Education Massachusetts, 471 U.S. 359; Application of a Child with a Disability, Appeal No. 93-1; Application of a Child with a Disability, Appeal No. 93-15). 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). A CSE must recommend a specific program which is, in fact, available to the child. 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. 92-33; Application of a Child with a Disability, Appeal No. 93-15). Although respondent asserts that an appropriate program was available to the child for the 1992-93 school year, it concedes that its CSE did not reconvene to recommend that the child be enrolled in the BOCES Project Learn Program. I find, as did the hearing officer, that respondent has not met its burden of proving that it offered an appropriate program for the 1992-93 school year, and further find that it did not meet its burden with respect to the 1991-92 school year. In view of these findings, I do not reach the issue of the appropriateness of the BOCES Project Learn Program for this child.*

Although petitioners have satisfied the first element of the Burlington criteria they must show that the child's placements in the Winchendon School during the 1991-92 school year and the Forman School during the 1992-93 school year were appropriate (Application of a Child with a Handicapping Condition, Appeal No. 92-34). For purposes of tuition reimbursement, an element of appropriateness is that the private school selected by a parent must be approved by the New York State Education Department (Tucker v. Bayshore UFSD, 873 F. 2d 563 [2nd Cir., 1989]; Hiller v. Brunswick CSD, supra; Straube v. Florida UFSD, 801 F. Supp. 1164 [S.D.N.Y., 1992]; Lombardi v. Nyquist, 63 AD 2d 1058, lv. to app. den., 45 NY 2d 710). Although one court has reached the opposite conclusion (Carter v. Florence Co. Sch. Dist. Four, 950 F. 2d 156 [4th Cir., 1991], cert. granted 61 USLW 3580 [1993]), I find that I am bound by the Second Circuit's Tucker decision, which also involved a unilateral parental placement of a child (Application of a Child with a Handicapping Condition, Appeal No. 92-21).

In addition, the requirement that a child be placed in the least restrictive environment (34 CFR 300.550 [b]) applies to a unilateral parental placement when public funding for such placement is sought (P.J. v. State of Connecticut, 788 F. Supp. 673 [D. Conn., 1992]; Application of a Child with a Handicapping Condition, Appeal No. 92-30; Application of a Child with a Handicapping Condition, Appeal No. 92-7). The New York State Education Law requires that no child be placed in a residential school, unless there is no appropriate non-residential school available (Section 4402 [2][b][2]). Under Federal and State law, a residential placement is appropriate only if such placement is required in order for the child to benefit from the child's educational program, i.e., make educational progress (Abrahamson v. Hershman, 701 F. 2d 223 [1st Cir., 1983]; Burke County Bd. of Ed. v. Denton, 895 F. 2d 973 [4th Cir., 1990]; Kerkam v. Superintendent D.C. Public Schools, 931 F. 2d 84 [D.C. Cir., 1991]; Applications of Bd. of Ed. Hoosic Valley CSD and a Child with a Handicapping Condition, 30 Ed. Dept. Rep. 129).

Petitioners premise their assertion that the child requires a residential school upon the advice they received from a psychiatrist employed by the hospital in which the child was a patient, the opinion of a psychologist affiliated with the Forman School and the testimony of the Forman School's assistant headmaster. The psychiatrist stated in a letter to petitioners (Ex. Y) that the hospital had recommended that the child attend a boarding school that focused on the child's learning disability "as well as depression and anxiety secondary to her learning difficulties", and that such a setting was necessary "to maximize her potential." A BOCES psychiatrist, who evaluated the child on August 6, 1992, opined in a letter that the child's depression was secondary to her life circumstances rather than a primary disorder, and that the child's return to live with her family was not likely to lead to her regression. The psychologist who is affiliated with the Forman School opined in a letter that the child's residence at the School maintained a structure on a twenty-four hour basis which reduced stress and allowed the child to learn more effectively. However, the testimony of the assistant headmaster did not address the 24 hour structure which the School purportedly provided. As described by the assistant headmaster, the Forman School's educational program is an academically oriented program for learning disabled children, not unlike the programs offered in special education day programs.

Inexplicably, the only special education services which respondent has provided to the child are resource room services. Resource room services are among the least restrictive special education services which a board of education may provide, while the residential placements for which petitioners seek reimbursement are among the most restrictive special education services which can be provided. In between these extremes are a variety of day special education programs, which afford the opportunity for mainstreaming. However, this child has never been in a special education class for all or part of the school day. On this record, I cannot conclude that there is a basis for determining that the child could not succeed academically in a less restrictive special education day program which is designed to address her academic needs and which provides suitable counseling to address her emotional needs.

In view of my finding that petitioners have not met their burden of proof with regard to the appropriateness of their unilateral placements, it is not necessary to determine whether equitable factors support an award of tuition reimbursement. It is apparent from the record that this child should have received more intense special educational services while she was enrolled in respondent's schools. However, petitioners must share some of the responsibility for the child's lack of progress, because of their reluctance to have the child initially classified (Straube v. Florida UFSD, supra). I also note that in a letter dated July 11, 1992, petitioners provided information about the child's progress in the Winchendon School to the BOCES, with the cautionary note that the information was "not for the use of the White Plains School system" (Ex. 5). Under Federal and State law, planning and implementing appropriate programs for children with disabilities is a joint responsibility of the parents and the CSEs, who must work together. By not referring the child to the CSE when it was apparent that the child continued to have significant academic difficulties not withstanding her participation in respondent's Learning Strategies Program, respondent has also not fulfilled its responsibility.

Pursuant to the hearing officer's decision, respondent's CSE must prepare a new IEP for the 1993-94 school year. There is no evidence in the record of an assessment of the child's vocational skills, aptitude and interests, which should be performed if it has not already been done (8 NYCRR 200.4 [b][4][vii]). The record contains little, if any, useful information about the child's current achievement levels. State regulation requires that a child who has been classified as having a disability must be re-evaluated at least every three years (8 NYCRR 200.4 [e][4]). Since the child was initially evaluated and classified in 1990, respondent's CSE must conduct a triennial evaluation before it prepares a new IEP. The CSE must prepare an IEP which accurately identifies the child's special education needs, establishes annual goals and short-term objectives which are based upon those needs, and provides for the use of appropriate special education services to address those needs. Although an IEP must identify the areas in which a child will participate in regular education programs (8 NYCRR 200.4 [c][2][iv]), it is not necessary to list goals and objectives for the child's performance in the regular education program.

THE APPEAL IS DISMISSED.