94-004

Petitioners appeal from the decision of an impartial hearing officer which upheld the recommendation by respondent's committee on special education (CSE) that petitioners' child be enrolled in a school district special education class for the 1993-94 school year, and which denied petitioners' request for an order directing respondent to pay for the child's tuition for the private school in which petitioners had placed the child. The appeal must be sustained.

Petitioners' child, who is 10 years old, has been classified as learning disabled. His classification is not in dispute. The record reveals that the child has average cognitive skills, without a significant discrepancy between his verbal and performance IQ scores. A series of ear infections prior to the child's entry into school reportedly led to the child having "borderline" hearing, as well as delays in the development of his speech/language skills. Although there is no evidence of any audiological examination of the child in the record, the child's individualized education program (IEP) for the 1992-93 school year described the child's hearing as normal. In a psychological evaluation performed in May, 1992, the child was described as having a severe mixed language disorder, which with attentional and motor deficits, had impeded the child's ability to read, spell, write and communicate. The child was further described as being easily frustrated, discouraged, and preoccupied with his low achievement.

In an educational evaluation which was completed in January, 1991, when the child was in the first grade, he was found to have age appropriate general knowledge and number readiness skills, as well as some of the skills required to read. However, the child exhibited significant language processing problems. The child's phonics, word reading, and listening comprehension skills were found to be below the 25th percentile on a standardized test for children who are in the first grade. The evaluator reported that letter reversals and transpositions were apparent in the child's reading and spelling. The evaluator also reported that the child had difficulty maintaining his attention for certain tasks and perseverated on tasks. Although the record does not include a more recent educational evaluation, the results of the child's performance on standardized tests taken in May, 1993, while he was in the third grade, reveal that his reading and mathematics skills were at a mid-second grade level. A report from the private school which the child attends also reveals that the child was instructed at the second grade level in language arts and mathematics during the 1992-93 school year, and was making satisfactory progress in all of his school subjects.

The most recent speech/language evaluation of the child included in the record was performed in March, 1991. The child reportedly made articulation errors, but his speech was nevertheless intelligible. The speech/language evaluator reported that the child exhibited a delay of almost two years in his auditory processing skills, and was unable to comprehend sentences which contained two clauses. She also reported that the child exhibited difficulty retrieving words from his memory to express himself with precision, although his spontaneous language was adequate. At the end of the 1992-93 school year, the child's speech/language therapist reported that the child's performance had improved in divergent, i.e., open-ended, language, but that the child still had difficulty initiating expression in highly structured language activities.

In June, 1991, the child was screened by an occupational therapist for his occupational therapy needs. The evaluator reported that the child had low muscle tone, proprioceptive impairment, and deficits in his visual motor and fine motor skills. In May, 1992, respondent's school psychologist reported that the child exhibited a three year delay in his perceptual motor skills. At the end of the 1992-93 school year, the child's occupational therapist reported that the child had made some progress, but recommended that the child continue to receive occupational therapy.

Petitioners sent their child to a sectarian private school for nursery school, kindergarten and the first grade. In the Spring of 1991, while the child was in the first grade, petitioners registered the child with respondent, referred him to respondent's CSE, and requested that respondent transport the child to another private school, the Churchill School, during the 1991-92 school year. The Churchill School has been approved by the New York State Education Department to provide instruction to children with learning disabilities. In June, 1991, the CSE recommended that the child be classified as learning disabled and be placed in a self-contained special education class in respondent's transitional learning program (TLP), or that the child be transported to the Churchill School if unilaterally enrolled in such school by petitioners.

In September, 1991, the child entered the second grade in Churchill School, where he has remained at petitioners' expense. During the 1991-92 school year, the child received speech/language therapy, occupational therapy and counseling provided by the Churchill School. Petitioners provided the CSE with the results of a private psychological evaluation performed in February, 1992, and requested that the CSE recommend an appropriate program for the child for the 1992-93 school year. Prior to meeting with the CSE, petitioners visited special education classes in two of respondent's elementary schools. On June 26, 1992, the CSE recommended that the child be enrolled for the third grade in a self-contained TLP class in respondent's #6 Elementary School and that he receive speech/language therapy and counseling. The IEP which the CSE prepared included annual goals and short-term objectives which had been provided by the Churchill School. Petitioners elected to have the child remain in the Churchill School, while they examined various placement options in respondent's schools. In September, 1992, a private psychologist retained by petitioners visited TLP classes in three of respondent's schools, including the #6 Elementary School. However, the child remained in the Churchill School, at petitioners' expense, for the remainder of the 1992-93 school year.

On June 2, 1993, the CSE met to discuss a fourth grade placement for the child during the 1993-94 school year. The CSE reportedly orally recommended that the child be enrolled in respondent's TLP program in the #6 Elementary School. However, the CSE deferred completion of the child's IEP for the 1993-94 school year at the June 2, 1993 meeting, until it received proposed annual goals and short-term objectives for the child from the Churchill School, and it did not send any written notice of its recommendation to petitioners. On or about October 14, 1993, the Churchill School sent proposed goals and objectives to the CSE, which completed the child's IEP on or about October 26, 1993. The completed IEP provided that the child would be placed in an unspecified TLP class with a child to adult ratio of 12:1+1 in the #6 Elementary School, and that the child would receive small group and individual counseling once each per week and speech/language therapy twice per week. The IEP did not provide for the child to receive occupational therapy.

In a letter dated September 7, 1993, petitioners' attorney requested that an impartial hearing be held. On October 23, 1993, respondent appointed a hearing officer, who scheduled the hearing to commence on December 2, 1993 (cf. 45 CFR 300.512 [a][1]; 8 NYCRR 200.5 [c][11]). The hearing in this proceeding was further delayed until December 10, 1993, because the original hearing officer became ill and respondent was required to appoint a new hearing officer.

By decision dated January 6, 1994, the hearing officer found that the CSE had not promptly notified petitioners of its recommendation and should not have deferred completing the child's IEP pending the receipt of information from the child's private school. Nevertheless, the hearing officer held that petitioners could not compel respondent to pay for the cost of the child's education in the Churchill School because respondent had demonstrated that it could provide an appropriate and less restrictive placement for the child in its own schools.

Respondent asserts that the appeal should be dismissed on procedural grounds, because the petition was improperly served upon respondent's Supervisor of Pupil Personnel Services. The Regulations of the Commissioner of Education provide that a petition in an appeal to the State Review Officer shall be served upon the board of education, the district clerk or the chief school officer (8 NYCRR 279.2 [b]). However, petitioners have submitted evidence that a copy of the petition was subsequently served upon the district clerk on March 1, 1994. Therefore, I find that the appeal has been properly commenced.

With regard to the merits of the appeal, petitioners assert that the hearing officer erred by accepting, over their objection, certain documents into evidence and allowing testimony relating to school years prior to the 1993-94 school year. An impartial hearing officer must afford all parties the opportunity to present evidence and testimony (8 NYCRR 200.5 [c][4]). However, it is within a hearing officer's discretion to limit irrelevant or unduly repetitious evidence and testimony (Application of a Child with a Handicapping Condition, Appeal No. 92-18; Application of a Child with a Handicapping Condition, Appeal No. 92-32). Although some of the testimony and documentary evidence in the record is of questionable relevance to the issues raised in the hearing, I find that the hearing officer did not abuse his discretion in allowing such testimony or admitting such documents in evidence (Application of a Child Suspected of Having a Disability, Appeal No. 93-18).

Petitioners also assert that the CSE's recommendation was procedurally flawed and is substantively inappropriate. The asserted procedural flaw involves the timeliness of the notice of its recommendation which the CSE provided to petitioners and the content of such notice. The hearing officer found that the CSE made its recommendation for the child's placement at its June 2, 1993 meeting, and that petitioners had to be aware of the recommendation because they objected to it at that meeting. Two of respondent's witnesses testified in the hearing that at its June 2, 1993 meeting, the CSE recommended that the child be enrolled in the TLP program in the #6 School. In his testimony, the child's father conceded that placement at the #6 School had been discussed at the CSE meeting, but asserted that the CSE did not recommend that the child attend a specific school. Notwithstanding the differing accounts of what had been discussed at the CSE meeting, I find that such testimony is not dispositive of the issue of when the CSE made its recommendation and provided petitioners with appropriate notice of such recommendation.

State regulation requires that for any child who has been found to be eligible for special education services, a CSE must make a recommendation in the form of an IEP which presents certain information about the child and the special education services and/or program which the CSE has recommended (8 NYCRR 200.4 [c][2]). The required information in a child's IEP includes a description of the child's present levels of performance (8 NYCRR 200.4 [c][2][i]), as well as a description of the child's annual goals and short-term instructional objectives (8 NYCRR 200.4 [c][2][iii]). Federal regulation requires that IEP objectives be written before a child is placed in a special education program (34 CFR Part 300, Appendix C, Question 42). In this instance, it is undisputed that there were no annual goals and short-term instructional objectives in the child's IEP for the 1993-94 school year until the latter part of October, 1993. Therefore, I find that the CSE did not make its recommendation until it completed the child's IEP on or about October 26, 1993.

Respondent's assertion that its CSE did not need to have IEP goals in order to make its recommendation is not only contrary to the express provisions of State regulation, but also reflects a misunderstanding of the process by which IEPs are prepared in annual reviews. It is incumbent upon the CSE to review the child's achievement of the annual goals and short-term instructional objectives from the child's existing IEP, as well as the results of standardized tests and information from the child's teacher, in order to determine the child's present levels of performance and to prepare appropriate annual goals and short-term instructional objectives for the child's new IEP. The annual review process provides a mechanism for determining whether the child is progressing and whether the services which the child is receiving are appropriate to the child's special education needs (34 CFR Part 300, Appendix C, Question 37). The CSE must accurately assess the child's progress and develop new appropriate goals and objectives, before determining what would be an appropriate program and/or services in order for the child to achieve such goals and objectives.

Federal and State regulations require that the parents of a child with a disability receive written notice of the CSE's recommendation (34 CFR 300.504 [a]; 8 NYCRR 200.5 [a][4][i]). The regulations also require that the parents be notified of other options which the CSE considered and the reasons why those options were rejected (34 CFR 300.505 [a][2]; 8 NYCRR 200.5 [a][4][i][c]). Petitioners assert that they were not notified of other options, such as placement in the Churchill School, which were considered by the CSE. Respondent asserts that other options considered by the CSE were revealed in the child's IEP, a copy of which was sent to petitioners. Although the IEP included a brief reference to petitioners' private placement of the child in the Churchill School and the CSE's invitation to petitioners to visit special education classes in three of respondent's schools, it did not disclose why the CSE rejected the option of placement in the Churchill School. Respondent has not offered any other evidence of a notice of the CSE's recommendation. Therefore, I find that respondent did not comply with the regulatory requirement.

With regard to the substance of the CSE's recommendation, respondent bears the burden of establishing the appropriateness of the recommended program (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. 93-43). 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 instructional 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).

The child's IEP which the CSE prepared relied upon the child's standardized test results from a psychological evaluation conducted in February, 1992 to describe his present levels of performance in reading and mathematics, notwithstanding the fact that the CSE discussed the child's performance with his teacher during the June 2, 1993 CSE meeting and received the child's year-end report from the Churchill School later on June 6, 1993. The record reveals that on September 14, 1993, a representative of the Churchill School provided the CSE with the results of standardized reading and mathematics tests which were administered to the child in May, 1993. I find that the CSE's failure to record current information about the child's levels of performance in his IEP is a serious flaw in the IEP (Application of a Child with a Disability, Appeal No. 93-12), and that respondent may not rely upon the purported failure of the Churchill School to provide recent test results as a basis for ignoring its responsibility to prepare an IEP which reveals the child's present levels of performance (Application of a Child with a Handicapping Condition, Appeal No. 90-23; Application of a Child with a Disability, Appeal No. 93-24).

State regulation requires that an IEP describe the child's needs in the areas of academics, social development, physical development and management (8 NYCRR 200.4 [c][2][1]). With regard to the child's academic needs, the IEP did not identify the child's level of skill in written language, expressive language, spelling and reading comprehension, despite setting forth annual goals for each of those skills. The IEP also did not describe the child's social development, notwithstanding the CSE's recommendation that the child receive counseling. The testimony of the child's teacher in the Churchill School and the two observation reports in the record suggest that the child has significant social delays. Although respondent's school psychologist noted that the child exhibited a significant delay in perceptual motor skills and the Churchill School's occupational therapist had reported that the child also exhibited deficits in his fine motor skills, the child's physical development was described in the IEP as age appropriate. The IEP described the child's management needs with three generic and conclusory sentences, which did not reveal that the child has exhibited off-task and perseverative behaviors. Therefore, I find that the child's IEP does not accurately reflect the results of prior evaluations, or describe each of his special education needs.

The child's IEP language arts and mathematics annual goals and short-term instructional objectives appear to be appropriate, based upon the limited amount of information in the record. However, the IEP did not uniformly include appropriate objective criteria and evaluation procedures, as well as schedules for determining whether the child has achieved his instructional objectives in each of the subjects in which he receives special education, as required by Federal regulation (34 CFR 300.346 [a][5]). The child's IEP included annual goals for health, keyboarding and library, but did not identify health, keyboarding or library as subjects in which instruction would be provided by special education. An IEP must also specify the extent to which the child will participate in regular education programs (8 NYCRR 200.4 [c][2][iv]). Although in the hearing in this proceeding the principal of the #6 School testified that the children in the TLP program were not mainstreamed for physical education, the child's IEP revealed that the child would take "regular physical education". Respondent has not explained any of the discrepancies in the child's IEP.

In addition to the defects in the child's IEP, respondent has not met its burden of proof of establishing the appropriateness of the program recommended by the CSE because of the scant information in the record about how the TLP program would meet the child's needs and assist him in achieving his IEP annual goals. During the hearing in this matter, respondent offered the testimony of its Supervisor of Pupil Personnel Services and its Principal of the #6 Elementary School. Although both witnesses opined that the TLP program would meet the child's needs and that the child would be appropriately grouped with the other children in one TLP class in the #6 Elementary School, neither witness offered sufficient information about the instruction provided in the recommended class to afford a basis for concluding that the child's academic needs, particularly his expressive-receptive language deficits, would be addressed. Respondent's witnesses referred to the use of a behavioral modification program in the classroom, but did not demonstrate how the child's social needs, especially his low self-esteem, would be addressed in the recommended program.

In appropriate circumstances, a board of education may be compelled to pay for the cost of a child's instruction in a private school selected by the child's parents (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. 93-12). A board of education must pay for a child's private school tuition, 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. I have found that respondent did not meet its burden of proof with respect to the first of the three elements, i.e., the appropriateness of its program. Petitioners bear the burden concerning the second element, i.e., the appropriateness of the Churchill School's program.

At the hearing in this matter, the child's teacher in the Churchill School for the 1993-94 school year described the reading and mathematics instruction which she provided to the child. The child's teacher testified that the child had made significant progress in reading, and had progressed in mathematics and writing. The teacher also testified that she met on a weekly basis with other staff who interact with the child, and that the child received a great deal of teacher support to maintain his involvement in class activities. The teacher further testified that the child had become more outgoing and willing to take risks in the classroom. The 1992-93 year-end report of the Churchill School and the child's annual goals and short-term objectives reveal that the child has received speech/language therapy in a small group outside the classroom, as well as in the classroom, and that his expression had improved.

The record supports petitioners' assertion that the child is appropriately grouped with other children of similar ability and needs in the Churchill School.

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 of 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 Disability, Appeal No. 93-38). Although the Churchill School provides instruction only to children with disabilities, the record reveals that placement of the child in the private school would not be significantly more restrictive than placement in respondent's TLP program. In each placement, the child would receive instruction in all subjects in special education classes. There is evidence in the record upon which to find that the child's current expressive-receptive language deficits and social deficits would preclude the benefit of interaction with non-disabled peers which placement in the #6 School would provide. Upon the record before me, I find that the child's placement in the Churchill School is consistent with the requirement of least restrictive environment (Application of a Child with a Disability, Appeal No. 93-1; Application of a Child with a Disability, Appeal No. 93-15).

The last issue to be determined is whether equitable considerations support petitioners' claim for tuition reimbursement. Respondent asserts that any delay in the completion of the child's IEP is attributable to petitioners and the Churchill School. The record reveals that the child's father had the proposed IEP goals and objectives for the 1993-94 school year which the Churchill School had prepared, when petitioners met with the CSE on June 2, 1993. The child's father testified that he was not asked by any of respondent's employees to provide the goals and objectives either at, or subsequent to, the CSE meeting. His testimony was not rebutted by respondent at the hearing. It was the CSE's responsibility to prepare all of the child's IEP on a timely basis. The CSE failed to perform its responsibility. I find that equitable considerations support petitioners' claim.

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 Churchill School for the 1993-94 school year, and shall reimburse petitioners for their expenditures for tuition from September, 1993 to date, upon petitioners' submission of proof of such expenditures to respondent.