94-017

Petitioners appeal from the decision of an impartial hearing officer which upheld the recommendation by respondent's committee on special education (CSE) that for the 1993-94 school year, petitioners' child be classified as multiply disabled and be placed in a self-contained special education class in respondent's elementary school. They request that respondent be ordered to pay for an independent evaluation of the child and to reimburse them for their expenditures for the child's tuition in a private school which they selected for her. The appeal must be sustained in part.

Petitioners' child is nine years old. The child was initially classified as speech impaired in August, 1989, prior to her enrollment in a preschool program of the Community Rehabilitation Center (CRC) for the 1989-90 school year. While in the preschool program, the child received speech/language therapy and adaptive physical education. In June, 1990, respondent's committee on preschool special education (CPSE) recommended that the child remain classified as speech impaired and continued to be instructed in the CRC in a special education class with a child to adult ratio of 12:1+4.

In November, 1990, the CSE purported to recommend that the child's classification be changed to emotionally disturbed, after having allegedly been advised by a representative of the State Education Department that the child's placement in such a restrictive environment as the CRC class could not be approved for State aid purposes (see 8 NYCRR 200.6 [i]). There is no evidence that respondent approved the CSE's recommendation, or that the child's individualized education program (IEP) was revised to reflect the CSE's recommendation (cf. 8 NYCRR 200.4 [c][2][ii]). At the time of the CSE meeting in November, 1990, the child was in the custody of the Ulster County Commissioner of Social Services, and was living with a foster parent. The notice of the CSE's recommendation sent to the child's foster parent erroneously indicated that the child was to remain classified as speech impaired.

Petitioners, who became the child's foster parents in June, 1992, and her adoptive parents in May, 1993, subsequently attempted to challenge the action taken by the CSE at its November, 1990 meeting, by requesting an impartial hearing. On February 28, 1994, an impartial hearing officer held that petitioners' claim was moot, and that, in any event, the record before him was adequate to support the child's classification as emotionally disturbed. Petitioners appealed from the hearing officer's decision. In Application of a Child with a Disability, Appeal No. 94-9, their appeal was dismissed for lack of subject matter jurisdiction, because the Federal regulations implementing the Individuals with Disabilities Education Act (20 USC 1400 et seq.) prescribe a specific procedure for challenging alleged inaccuracies in children's educational records (34 CFR 300.560-575).

The child remained in the CRC, at respondent's expense, for the 1990-91 school year. On June 3, 1991, the CSE recommended that for the 1991-92 school year, the child be classified as speech impaired and that she be enrolled in a 12:1+1 special education class of the Ulster County Board of Cooperative Educational Services (BOCES). The CSE further recommended that the child receive speech/language therapy four times per week and counseling once per week. The child's IEP included annual goals to increase her reading and mathematical readiness skills and to improve her social interactions with peers and adults. The child's then foster parent did not object to the CSE's recommendation. However, the record reveals that the child was in fact enrolled in a BOCES "multiple management needs" class with a child to adult ratio of 6:1+2, rather than a 12:1+1 class, during the 1991-92 school year.

On May 27, 1992, the CSE recommended that the child remain classified as speech impaired for the 1992-93 school year. Although the child's IEP which was prepared on that date did not indicate what the CSE recommended as the child's placement, the record reveals that the child attended a BOCES summer program, and returned to the BOCES multiple management needs class, which was relocated from another school to respondent's elementary school in September, 1992. The CSE recommended that the child continue to receive speech/language therapy, counseling and adaptive physical education. In her IEP the child was described in need of a language based therapeutic education program which focused upon the child's speech/language cognitive, social and attending skills.

By memorandum dated November 6, 1992, a BOCES supervisor recommended to respondent's CSE chairperson that the child be considered for mainstreaming in respondent's pre-first grade class, because the child's academic skills were at the readiness level and she did not evidence any behavioral problem. In a letter dated November 8, 1992, to the CSE chairperson, petitioners requested that the child be placed with her chronological peers in a second grade regular education class for music, art, physical education and lunch, and that she be placed in a pre-first, first or second grade classes for other activities which might prepare the child for inclusion in a regular education third grade class for the 1993-94 school year. Although not explicitly defined by Federal or State regulation, the term "inclusion," as used by the parties in this appeal and as generally recognized by educators, means placement of a child with a disability with the child's age-appropriate peers in a regular education class, in which the child receives appropriate special education services. At the hearing in this proceeding, the CSE chairperson testified that a child with a disability in an inclusion program is expected to achieve at a level consistent with the child's ability, rather than the level of achievement expected of the child's non-disabled peers as would be expected if the child with a disability were simply mainstreamed for particular subjects.

Shortly after petitioners made their request to the chairperson of the CSE, the child began to participate in certain activities such as art, music, library and physical education, with the children of respondent's pre-first grade regular education class. The record reveals that there were approximately 16 children in the pre-first grade class, in which the teacher was assisted by an aide. The child was reportedly successful in her participation with the pre-first grade children. In a progress report to petitioners, dated January 17, 1993, the child's BOCES special class teacher disclosed that the child had made significant gains in her reading and mathematics readiness skills. The teacher reported that the child was cooperative and completed worksheets, with one-to-one attention, but would stop working in coloring and writing activities, if not supervised. The teacher further reported that the child's self-confidence in social interactions had improved.

On January 19, 1993, the child's father met with the child's teachers and the CSE chairperson to discuss alternative placements for the child, whose BOCES class was to be dissolved in early February, 1993. It was agreed that the child's participation in the pre-first grade class activities would increase so that she could be placed on a full-time basis in such class by February 1, 1993. However, there was no evaluation to support the child's change of placement (cf. 34 CFR 104.35 [a]), nor was there any meeting of the CSE, or amendment of the child's IEP to prescribe the child's educational program in the pre-first grade class (cf. 34 CFR 300.552 [a][2]). Indeed, the pre-first grade teacher testified at the hearing in this proceeding that she had not participated in the January 19, 1993 meeting, and could not recall when she had received the child's existing IEP. The teacher further testified that it was her understanding that the child was expected to keep up academically with the other children in the pre-first grade class, but conceded that she had modified the performance requirements of some activities for the child. When asked at the hearing about the child's achievement of her IEP goals, the pre-first grade teacher testified that she had assessed the child's academic progress in terms of class goals, rather than the child's IEP goals. Although the pre-first grade teacher testified that she occasionally discussed the child's needs with a BOCES special education teacher, there is no evidence in the record that the child received any special education instruction in the pre-first grade class.

In early May, 1993, petitioners received a modified report card for the child, in which her pre-first grade teacher described the child's skills and achievements. The teacher reported that the child participated in pre-reading activities, and was learning to identify letters and their sounds. She described the child as having a limited ability to orally express ideas. In mathematics, the child was reported to be able to compare sets and count to 10, as well to add and subtract, with picture cues and adult assistance. The pre-first grade teacher further reported that the child listened attentively, when cued by the teacher and could follow one-step directions and work quietly. However, the teacher also reported that the child had difficulty adjusting to changes in her routine and making transitions.

In May, 1993, the CSE also obtained a triennial re-evaluation of the child. Respondent's school psychologist reported that the child's verbal IQ score was 54, her performance IQ score was 65, and her full scale IQ score was 55. She further reported that the child exhibited significant strength in her visual motor dexterity skills and her ability to quickly complete motor tasks. However, the child exhibited a two and one-half year delay in her visual motor integration skills. The school psychologist opined that the results of the child's IQ tests were consistent with those of other tests of the child's ability, and that the results of the child's achievement tests, in which she as reported to have beginning kindergarten level skills, were also consistent with her IQ scores. The child was reported to have a mild deficit in the level of her adaptive functioning, with relative strength in her socialization skills. The school psychologist reported that the child appeared to be functioning within the mentally retarded range, and that the child's most significant needs were to improve her delayed language and academic skills. She opined that the child should be classified as multiply disabled, without explaining the basis for such opinion. The school psychologist recommended that the child be placed in a 12:1+1 special education class with children whose skills were comparable to those of the child, so that the child would not feel isolated by being in a class with children who were doing significantly different academic tasks.

In a speech/language evaluation which was also performed in May, 1993, the child was reported to have exhibited an approximately two and one-half year delay in her auditory comprehension skills. The child's performance on a test of language development and on an evaluation of language fundamentals was significantly below that expected of children of her age, but was consistent with the child's IQ scores reported by the school psychologist. The child was described as being essentially non-verbal in a spontaneous setting, such as a classroom, and as having severe deficits in her expressive and receptive language skills. The speech/language therapist who evaluated the child recommended that the child continue to receive speech/language therapy.

By letter dated May 14, 1993, petitioners informed the CSE chairperson of their desire to have the child placed in a regular education second grade class, with supportive services, for the 1993-94 school year. The CSE reportedly met with the child's mother on June 15, 1993, but did not make any recommendation for the child. On June 22, 1993, the CSE met with the child's father, and recommended that the child's classification be changed from speech impaired to multiply disabled. The CSE further recommended that the child be enrolled in a 12:1+1 special education class for the 1993-94 school year, with an unspecified amount of daily mainstreaming for socialization, and that she receive speech/language therapy three times per week and counseling once per week. The child's IEP prepared at the June 22, 1993 CSE meeting described the child as being able to benefit from multi-modal forms of instruction, but requiring continuous monitoring and reinforcement in order to remain on task. The child's IEP also reported that the child needed the feeling of security provided by a highly structured classroom environment. However, the CSE did not adopt any annual goal or short-term instructional objective for the child at its June 22, 1993 meeting (cf. 8 NYCRR 200.4 [c][2][iii]). On or about June 26, 1993, a school psychologist reportedly prepared goals and objectives, copies of which are annexed to the child's IEP entered as evidence in the record. However, the CSE has never approved the goals and objectives. Respondent approved the CSE's recommendation on July 27, 1993.

After attending the CSE meeting, the child's father provided respondent's superintendent of schools with a written description of petitioners' objections to the CSE's recommendation and a request for an impartial hearing to review the recommendation. In July, 1993, an advocate for petitioners and the CSE chairperson discussed what would be the child's "pendency placement" (see Section 4404 [4] of the Education Law). The CSE chairperson proposed that the child be placed in a regular education second grade class with the services of a consultant teacher and an aide, as a mutually agreed upon alternative pendency placement, and that petitioners agree to waive the Federal and State regulatory requirements that hearing officer's decision be rendered within 45 days after a hearing has been requested (45 CFR 300.512 [a][1]; 8 NYCRR 200.5 [c][11]), so that the parents and the CSE could determine if the proposed "inclusive" placement could meet the child's needs. The CSE chairperson advised the advocate that if petitioners did not accept his proposal, the child would likely be retained in the pre-first grade class during the pendency of the requested hearing.

By letter dated July 19, 1993, to the superintendent of schools, the child's father requested that the CSE meet again to complete the child's IEP for the 1993-94 school year by preparing annual goals and short-term instructional objectives. In a subsequent letter dated July 28, 1993, the child's father expressed dissatisfaction with the child's triennial re-evaluation and requested an independent evaluation at respondent's expense. A CSE meeting was scheduled to be held on August 3, 1993, but was canceled at the request of the child's father. Attempts to reschedule the CSE meeting at a mutually agreeable time were unavailing. The hearing requested by petitioners was scheduled to be held on August 23, 1993, but was adjourned while the parties attempted to resolve their differences. Petitioners' attorney agreed, on their behalf, to a waiver of the 45 day requirement for a decision by the hearing officer.

Respondent engaged the services of an independent consultant, who specializes in planning inclusion programs, to assist its staff in preparing such a program for petitioners' child. Although the consultant met with respondent's staff on the day before school opened for the 1993-94 school year, the effort to develop a program was abandoned, because petitioners unilaterally enrolled their child in the Mountain Laurel Waldorf School, a private school which is not approved by the State Education Department to provide instruction to children with disabilities.

The hearing in this proceeding began on October 12, 1993, and continued for seven additional days, ending on March 18, 1994. In a decision dated April 20, 1994, the impartial hearing officer found that respondent had met its burden of proof with respect to the appropriateness of the special class placement recommended for the child by the CSE on June 22, 1993, while noting certain weaknesses in respondent's documentation of the child's educational progress and her individual needs. The hearing officer did not specifically address petitioners' request for tuition reimbursement, or their request for an independent evaluation.

Before reaching the issues raised by the parties, I note that respondent has submitted with its answer seven pages of the child's health records, which respondent asserts were part of the child's file maintained by respondent, but were not introduced into the record before the hearing officer. Petitioners have challenged the adequacy of respondent's triennial evaluation of the child, in part because respondent allegedly did not obtain a physical examination of the child (cf. 8 NYCRR 200.4 [e][4]). They have not objected to the inclusion of the child's health records in the record of this appeal. Documentary evidence not presented at a hearing may be considered in an appeal from a hearing officer's decision, if such evidence was unavailable at the time of the hearing or the record would be incomplete without the evidence. I find that the record would be incomplete without the documentary evidence attached to the answer, and will allow it to be entered into the record of this appeal (Application of a Child with a Disability, Appeal No. 93-48; Application of a Child with a Disability, Appeal No. 94-12).

One other issue must be addressed at this juncture. Although petitioners have challenged the adequacy of the child's triennial evaluation and the appropriateness of the special class placement recommended by the CSE on June 22, 1993, respondent asserts that petitioners are estopped from challenging respondent's actions with respect to the 1993-94 school year, because subsequent to the CSE meeting it offered to provide the child with an inclusion program in the second grade for such school year. I find that respondent's assertion is untenable. When respondent's offer of placement in the second grade was initially conveyed to petitioners' advocate by the CSE chairperson in his July 19, 1993 letter (Exhibit 6), it was clearly denominated as an alternative pendency placement during the impartial hearing. The CSE chairperson indicated that:

" This does not constitute an agreement by the Committee on Special Education that the proposed status quo alternative is the program of record; the Committee on Special Education approved the recommendation outlined above [the recommendation of June 22, 1993]."

Petitioners' attorney and an associate of respondent's attorney subsequently corresponded in August, 1993 about an alleged settlement, in which the proposed second grade placement was described as an alternative to the status quo placement respondent's pre-primary class (Exhibits 18 and 19). However, even if the parties had intended to reach a settlement, they did not in fact do so. Under Federal and State law, any change in a child's educational program would have to be recommended by the CSE (Application of a Child with a Handicapping Condition, Appeal No. 92-34, judgment granted dismissing petition to review, Dorian G. v. Sobol et al., 93-CV-0687, U.S. D.C. E.D. N.Y., 1994; Application of a Child with a Handicapping Condition, Appeal No. 92-15). There is no evidence in the record that the CSE's recommendation of June 22, 1993 has been superseded by any subsequent CSE recommendation.

Petitioners assert that the child's triennial re-evaluation was inadequate, because it did not include a physical examination, and because the child's updated social history (Exhibit 5) did not describe the child's family history or her developmental history. Federal and State regulations require that each child with a disability be re-evaluated at least once every three years (34 CFR 300.534 [b]; 8 NYCRR 200.4 [e][4]). Federal regulation does not prescribe the kinds of evaluation which must be performed. State regulation requires an examination by a physician, school psychologist and other qualified individuals, for the purpose of providing sufficient information to determine the child's individual needs and continuing eligibility for special education. Therefore, neither Federal nor State regulation requires that each triennial re-evaluation include a new or updated social history. In this instance, the CSE did obtain an updated social history. I find that respondent's updated social history was adequate. The physical examination upon which the CSE reportedly relied was performed on June 9, 1992. In addition, the child's health records reveal that in November, 1992, the child's vision and hearing were tested, and found to be within normal limits. I find that the medical information which the CSE possessed was obtained within three years of the June 22, 1993 CSE meeting, and that respondent has demonstrated its compliance with the requirement of a triennial re-evaluation. Upon the record before me, I must find that there is no basis for requiring respondent to pay for an independent physical examination or social history under either Federal or State regulation (34 CFR 300.503 [b]; 8 NYCRR 200.5 [a][1][vi]).

Respondent bears the burden of establishing the appropriateness of the classification and program recommended by its CSE (Application of a Child with a Disability, Appeal No. 92-2; Application of a Child with a Disability, Appeal No. 93-20). With regard to the proposed classification of the child as multiply disabled, I find that respondent has not met its burden of proof. State regulation defines a multiply disabled child as:

"a student with two or more disabilities that result in multisensory or motor deficiencies and developmental lags in the cognitive, affective or psychomotor areas, the combination of which cause educational problems that cannot be accommodated in a special education program solely for one of the impairments". (8 NYCRR 200.1 [mm][8])

The information in the record before me does not provide any basis for concluding that petitioners' child has a multisensory deficiency or a motor deficiency. The child's vision and hearing were reported to be normal, in 1992. There is no evidence of any subsequent change in her vision or hearing. A physician, who examined the child on June 9, 1992, reported that the child's physical growth was within normal limits. There is no evidence of a motor deficit, notwithstanding an IEP annual goal purporting to address a deficit in the child's fine motor skills. Indeed, there is no evidence of a multiplicity of disabilities which could not be accommodated in a special education program designed solely for a single impairment. The record does reveal that the child has cognitive deficits, as well as deficits in her adaptive behavior, both of which are necessary in order for a child to be classified as mentally retarded (8 NYCRR 200.1 [mm][7]; Application of a Child with a Handicapping Condition, 28 Ed. Dept. Rep. 206). The record further reveals that the child has significant deficits in her expressive and receptive speech skills. Nevertheless, the child's language development is consistent with her cognitive skills and academic skills, as noted by respondent's school psychologist. Upon the record before me, I find that the child would be appropriately classified as mentally retarded.

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, and establishes annual goals and short-term instructional objectives which are related to the child's educational deficits (Application of a Child with a Handicapping Condition, Appeal No. 92-42; Application of a Child with a Disability, Appeal No. 93-12). The central issue in this appeal is whether respondent's CSE had adequate information to prepare an IEP for the 1993-94 school year. Although the CSE had the required evaluations performed, the information which such evaluations yielded was inadequate, especially in light of the discrepant information presented by the child's counselor, special education teacher, pre-first grade teacher and the school psychologist with regard to the child's socialization skills and the extent to which they should be addressed by special education and related services. Although the school psychologist reported that socialization was a relative strength among the child's adaptive behaviors, the school psychologist nevertheless, in part, premised her opinion that the child should be educated in a special class upon her belief that the child had difficulty establishing new friendships. However, the child's pre-first grade teacher reported that the child had made friends with most of the girls in her class.

The child's IEP for the 1993-94 school year described her management needs with the statement that her classroom behavior seriously interferes with the instructional process, requiring added adult behavior. The IEP also indicated that while the child does not disturb others or interfere with their learning, she needs continuous monitoring and reinforcement to maintain focused attention to task and perseverance. The child's pre-first grade teacher advised the CSE chairperson that the child had initially been overwhelmed by the environment of the pre-first grade class, and had required constant guidance and reassurance. However, the teacher further stated that the child had made considerable progress in adjusting to the classroom, and that the child persevered and usually attempted to complete her assignments. At the hearing in this proceeding, the teacher testified that the child had required more of the classroom aide's attention than the other children in the pre-first grade class, but conceded that the child's acting-out behavior, i.e., crying when frustrated, had decreased. The school psychologist, who helped to draft the child's IEP, testified that the description of the child's management needs was based upon her conversation with the pre-first grade teacher. However, neither the pre-first grade teacher nor the school psychologist had documented the frequency of the child's off-task behavior.

The CSE also lacked adequate information about the child's academic skills and achievements. The child's IEP described the child's educational achievement as at the kindergarten level in reading and mathematics, based upon the results achieved in standardized testing. However, there is a dearth of information about the child's achievement during the time of her enrollment in the pre-first grade. The record does not reveal whether the child achieved any of her IEP goals for the 1992-93 school year, which would be essential information for the CSE to have when it determined her program for the 1993-94 school year (Application of the Bd. of Ed. Schalmont Central School District, Appeal No. 90-19).

The consultant whom respondent engaged to assist the CSE in planning an inclusion program for the child testified at the hearing that there was inadequate information about the child to ascertain her ability to function in an inclusion setting. I agree with the consultant. In view of the Federal and State requirement that children with disabilities be placed in the least restrictive environment (34 CFR 300.550; 8 NYCRR 200.6 [a][1]), I find that the CSE lacked adequate information to recommend an appropriate program for the child during the 1993-94 school year.

In addition to the inadequacy of the information about the child, I must note that the child's IEP has two major defects. Federal and State regulations require that a child's IEP indicate the extent to which the child will be able to participate in regular education programs (34 CFR 300.346 [a][3]; 8 NYCRR 200.4 [c][2][iv]). That requirement may be met by indicating the percentage of time in which the child will be in a regular education class, or by indicating the specific regular education classes which the child will attend (34 CFR 300.346, Appendix C, Question 52). This child's IEP merely indicated that the child would be mainstreamed on a daily basis for socialization. The IEP also lacked goals and short-term instructional objectives. Although the CSE chairperson subsequently attempted to schedule another CSE meeting to consider the child's IEP goals and objectives, the IEP in the record before me does not have goals or objectives approved by the CSE, and is therefore defective (34 CFR 300.346 [a][2]; 8 NYCRR 200.4 [c][2][iii]).

Petitioners request an order directing respondent to reimburse them for their expenditures for the child's tuition at the Mountain Laurel Waldorf School during the 1993-94 school year. A board of education may be required to pay for educational services obtained for a child by the child's parent, 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 parent's claim (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]; Hiller v. Brunswick CSD, 687 F. Supp. 735 [N.D. NY, 1988]). I have found that respondent did not meet its burden of proof with respect to the first of the three criteria in Burlington, i.e., the appropriateness of the services offered by respondent.

Petitioners bear the burden of proof with respect to the second Burlington criterion, i.e., the appropriateness of the services which they selected. In order to meet their burden, petitioners must show that the services provided by the private school were "proper under the Act [the Individuals with Disabilities Education Act]" (School Committee of the Town of Burlington, supra, 370). In other words, they must show that the private school addressed at least some of the child's special education needs (Application of a Child with a Handicapping Condition, Appeal No. 92-25). The fact that the Mountain Laurel Waldorf School has not been approved by the State Education Department to provide instruction to children with disabilities is not dispositive of the matter (Florence County School District Four et al. v. Carter by Carter, U.S. , 114 S. Ct. 361 [1993]). The child's teacher in the Mountain Laurel Waldorf School testified at the hearing that the child received speech/language therapy and counseling during the 1993-94 school year, each of which was provided by the BOCES. Although the teacher briefly alluded to some remedial instruction provided by another teacher in the private school, there is no evidence in the record that the child received any special education in the Mountain Laurel Waldorf School to address her special education needs. Indeed, the child's teacher could not identify any area of special educational need in which she had instructed the child, nor could she specify the child's academic accomplishments since entering the private school in September, 1993. Instead, the teacher testified that the child received the same instruction every child receives at the private school, which does purport to provide special education. In the absence of evidence that the child received any special education to address her special education needs in the private school, I am constrained to find that there is no legal basis for petitioners' claim for tuition reimbursement (School Committee of the Town of Burlington, supra; Application of a Child with a Disability, Appeal No. 94-15).

In view of my finding with regard to the second Burlington criterion, I do not reach the third Burlington criterion. With the conclusion of the 1993-94 school year, there is no need to require the CSE to prepare a new IEP for such school year. However, it must prepare the child's IEP for the 1994-95 school year consistent with this decision. If petitioners choose to place the child in a private school, respondent must make appropriate services available to the child, as required by 34 CFR 300.403 (a).

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

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

IT IS FURTHER ORDERED that within 30 days after the date of this decision, respondent's CSE shall make its recommendation for the child's educational program during the 1994-95 school year.