94-020

Petitioner appeals from the decision of an impartial hearing officer which denied petitioner's request for tuition reimbursement for the 1992-93 and 1993-94 school years, on the grounds that petitioner had failed to demonstrate that the private school in which she had unilaterally placed her child provided an appropriate program of special educational services and was the least restrictive environment for the child. The appeal must be sustained.

Petitioner's daughter, who is 13 years old, has been classified as other health impaired. The child reportedly had seizures, accompanied by high fevers, before reaching age five. In May, 1992, the child's neurologist reported that the child did not exhibit any evidence of a seizure disorder, but diagnosed her as having a minimal brain dysfunction syndrome. In June, 1992, a psychiatrist diagnosed the child as having a pervasive developmental disorder. The psychiatrist based her medical diagnosis upon the child's history of academic difficulties, delays in speech/language and fine motor coordination, emotional immaturity, great difficulty in making and maintaining friendships with peers, and exhibition of ritualistic and compulsive behavior. In June, 1993, a second psychiatrist opined that the child had a severe and chronic organic personality disorder. At the hearing in this proceeding, respondent's school psychologist opined that the educational classification of other health impaired was consistent with the medical diagnosis of pervasive developmental disorder, and was appropriate for the child. A private psychologist who also testified at the hearing concurred that other health impaired was an appropriate classification. Petitioner does not challenge the child's classification.

The child entered a preschool program when she was three years old. She was reportedly described by her teacher as unresponsive, very distractible and lacking social skills, and was held over in the preschool program for three year old children. A pediatric neurologist prescribed medication to control the child's seizures. In September, 1986, the child entered kindergarten in respondent's Elm Drive School, where she was almost immediately referred to respondent's committee on special education (CSE). The CSE recommended that the child be classified as other health impaired, and that she be placed in a special education class with a 6:1+1 child to adult ratio in a BOCES program in Poughkeepsie. The child entered the recommended program in the latter part of the 1986-87 school year, and remained in the BOCES program for the next three school years.

For the 1990-91 school year, the CSE recommended that the child be classified as learning disabled, and be placed for the third grade in a 12:1+1 special education class and receive counseling in respondent's Alden Place Elementary School. Petitioner accepted the CSE's recommendation. For the 1991-92 school year, the CSE recommended that the child remain classified as learning disabled, and continue in a 12:1+1 special education class in the elementary school. The CSE further recommended that the child be mainstreamed for fourth grade social studies, science, music, art and physical education. In October, 1991, the child was also mainstreamed for fourth grade mathematics. During the 1991-92 school year, the child received individual and small group speech/language therapy, as well as occupational therapy. At petitioner's request, the child was not provided with counseling by respondent. Although petitioner had concerns about the child's special class placement during the 1990-91 school year, she accepted the CSE's recommendation for the 1991-92 school year.

At the hearing in this proceeding, petitioner testified that she hired a tutor to assist the child from late June, 1991 until December, 1991. Petitioner discontinued the tutor's services, upon the recommendation of her family therapist, because the child exhibited increasing anxiety about working with the tutor. Petitioner further testified that the child became obsessive about doing her homework immediately upon arriving home from school, and was frustrated by her inability to do all of her homework. In January 1992, petitioner obtained the services of a private social worker to assist her in managing the child's behavior at home.

In a November 18, 1991 progress report, the child's special education teacher reported that the child's reading and writing skills had improved, and that the child was usually very well behaved. However, the teacher further reported that the child had very little self-confidence, and occasionally required 1:1 support when she became confused. In a written report dated February 6, 1992, the child's teacher indicated that the child could learn new material quickly when she was focused, but that the child had trouble focusing, or staying on task. The teacher reported that the child demonstrated few independent work skills, and was tense at all times. The teacher also reported that the child had extreme emotional episodes, but could generally be calmed down using the time-out technique. She described the child as having few social skills, but nevertheless having some friends in her special education class. Her teacher also indicated that the child did not enjoy socializing, or being mainstreamed into regular education classes.

The child's report card for the 1991-92 school year reveals that she achieved satisfactory grades in her mainstreamed mathematics, social studies, music, art and physical education courses, and an "outstanding" grade in her mainstreamed science course. Nevertheless, she was reportedly anxious about her performance in her mainstreamed academic classes, and was, on occasion, removed from those classes during the school year. During the last two weeks of the school year, the child remained in her special education class, but reportedly completed assignments in her mainstreamed courses.

The child's special education teacher testified in the hearing in this proceeding that she rearranged the child's schedule, so that the child could work on her regular education homework during the last one-half hour of the school day, and that she or an aide would work with the child on her homework. The teacher further testified that she and the child's speech/language therapist attempted to accommodate the child's concern about having to leave class to receive such therapy by providing some of the therapy in her special education class. The child's special education teacher also testified that the child's management needs had decreased during the course of the 1991-92 school year, but conceded that the child continued to have emotional outbursts requiring teacher intervention. Although the child began taking Valium in March, 1992, the teacher testified that she did not notice any change in the child's behavior. Indeed, the teacher recommended to the CSE that the child be classified as emotionally disturbed and receive all instruction, except mathematics, in her special education class during the 1992-93 school year.

Although the child was due to have a triennial re-evaluation in June, 1992, respondent's school psychologist acceded to petitioner's request to defer further testing, because the child had recently been evaluated by a neurologist, psychiatrist and social worker. Therefore, the child was not re-evaluated prior to the CSE's annual review of her IEP. It should be noted that when respondent purported to conduct its triennial re-evaluation in September, 1992, its school psychologist merely reviewed the records in the child's file (cf. 8 NYCRR 200.4 [e][4]).

On May 20, 1992, the CSE made its recommendation for the 1992-93 school year. The CSE recommended that the child's classification be changed from learning disabled to other health impaired. The CSE also recommended that the child remain in an "Option II" special class with a 15:1+1 child to adult ratio, and that she be mainstreamed for special subjects, such as art, music and physical education, as well as for fifth grade mathematics and for homeroom, but she no longer be mainstreamed for social studies and science. The CSE further recommended that the child continue to receive speech/language therapy and occupational therapy, and that her visual perception skills be tested. As in the child's prior individualized education program (IEP), the CSE recommended test modifications for the child, including separate locations, extended time to answer questions, and flexibility in recording her answers. The reported rationale for the CSE's recommendation not to mainstream the child for social studies and science was to reduce her anxiety.

Respondent approved the CSE's recommendation, and petitioner appeared to accept it. However, after an incident involving the child and some of her chronological peers at a recreational facility in July, 1992, petitioner began to search for an alternative educational program for the child. In August, 1992, petitioner met with the CSE chairperson, and provided the chairperson with reports from the child's neurologist and her psychiatrist. Petitioner reportedly sought to have respondent pay for the child's tuition at the Maplebrook School, a private school in which the petitioner intended to place the child for the 1992-93 school year. She was advised by the CSE chairperson that respondent could not pay for instruction of the child in a school which had not been approved by the State Education Department as a school for children with disabilities.

The child attended the Maplebrook School, which is located in Amenia, New York, as a day student during the 1992-93 school year. The record reveals that the Maplebrook School provides elementary and secondary education, and is a registered secondary school. However, it is not approved by the State Education Department as a school for children with disabilities, for purposes of State reimbursement to school districts for tuition costs (Section 4405 of the Education Law; 8 NYCRR 200.6 [i]). At the hearing in this proceeding, petitioner testified that her husband's insurer had paid for 60 percent of the tuition charge of $12,900. for the 1992-93 school year, and that she and her husband had paid the remainder to the Maplebrook School.

Petitioner did not immediately request a review of the CSE's recommendation for the 1992-93 school year. She testified that she initially attempted to contact her attorney in September, 1992, and thereafter set about gathering documents. In January, 1993, petitioner sought additional information about the program which the CSE had recommended for the 1992-93 school year, from its chairperson. Petitioner did not request that an impartial hearing be held to review the CSE's recommendation for the 1992-93 school year, until April 23, 1993. The parties subsequently agreed to defer the hearing requested by petitioner, pending the development of the CSE's recommendation for the 1993-94 school year, with the understanding that any objection by petitioner to the latter recommendation would also be considered in the deferred hearing.

In February, 1993, the child was evaluated by a private psychologist, who reported that the child obtained IQ scores of 80 for verbal, 62 for performance and 70 for full scale. The child's scores were reported to be consistent with those obtained in prior evaluations. The psychologist reported that the child exhibited significant deficits in her perceptual and visual-motor skills, which would significantly interfere with her ability to learn and require that a multimodal and flexible approach be used in instruction. The psychologist also reported that academic testing revealed that the child achieved grade equivalent scores of beginning third grade in reading, below third grade in spelling, and beginning fourth grade in arithmetic. The child's adaptive behavior ranged from approximately two years below her age level, in daily living skills, to nine years below her age level, in socialization. Projective testing revealed that the child appeared to be unable to respond when she felt pressured, and exhibited poor impulse control when stressed or frustrated. The psychologist reported that the child exhibited a poorly integrated personality and ego weakness, resulting in a lack of normal flexibility and resistance to change. He also reported that the child demonstrated poor interpersonal skills, and had anti-social tendencies. He opined that the child's functional abilities were significantly compromised by her learning and emotional difficulties, and that she required an academic program which was responsive to both her emotional and learning needs.

On May 25, 1993, the child was observed in class in the Maplebrook School by respondent's school psychologist, who reported that the child interacted appropriately with adults and her peers, but was easily distracted by extraneous noises. During a social studies test, the child was observed by the school psychologist to manifest her anxiety by shaking her leg, commenting about the test being too hard and flipping her test paper several times.

On May 26, 1993, the CSE began its annual review of the child's IEP, but deferred making a recommendation pending the receipt of additional evaluation data, including the results of a speech/language evaluation. Respondent's speech/language therapist subsequently reported to the CSE that the child exhibited a severe expressive language delay on one test, and moderate receptive and expressive language delays on another test. When the CSE reconvened on June 22, 1993, it recommended that the child remain classified as other health impaired, and that she be provided with an out-of-district placement in a special education class with a child to adult ratio of either 8:1+1, or 6:1+1. It also recommended that the child receive small group speech/language therapy three times per week, individual counseling once per week with a social skills program if needed. The CSE further recommended that the child receive an occupational therapy evaluation. However, the CSE did not identify a specific placement for the child, at its June 22, 1993 meeting.

The CSE contacted a BOCES and several schools, including two private schools, about the possible placement of the child. Petitioner visited the two private schools, and spoke to an administrator of the BOCES about its program. On August 31, 1993, the CSE revised the child's IEP to provide for a special class placement in a 6:1+1 class, and the use of a behavior contract system. It recommended that the child be placed in the Karafin School. Shortly thereafter, petitioner, who was unable to attend the CSE meeting, requested that the hearing which she had requested in April, 1993 be commenced. The child continued to attend the Maplebrook School, at petitioner's expense. As in the previous school year, the parents' insurer paid for approximately sixty percent of the $12,900 charged for tuition by the Maplebrook School.

The hearing began on November 23, 1993. It continued on seven additional days, and ended on March 21, 1994. In a decision dated May 31, 1994, the hearing officer held that respondent had failed to meet its burden of proof with respect to the appropriateness of the placements which it had offered for the 1992-93 and 1993-94 school years. With regard to the child's IEP for the 1992-93 school year, the hearing officer found that the CSE had failed to identify all of the child's special education needs, or to accurately report the child's present levels of performance in each of four areas, as required by 8 NYCRR 200.4 (c)(2)(i). The hearing officer found that the CSE's placement recommendation for the 1993-94 school year, i.e., for the Karafin School, was flawed by the CSE's failure to evaluate the child prior to recommending a significant change in her placement (see 34 CFR 104.35 [a]). In view of his findings with respect to both school years, the hearing officer found that petitioner had satisfied the first part of the tripartite test articulated by the U.S. Supreme Court in School Committee of the Town of Burlington v. Dept. of Education, Massachusetts, 471 U.S. 359 (1985), i.e., that the services offered by the board of education were inadequate or inappropriate.

The second part of the Burlington test is whether the services selected by the parent, in lieu of those offered by the school district, are appropriate for the child. The hearing officer acknowledged that the Maplebrook School was not approved by the State Education Department to provide instruction to children with disabilities was not dispositive of petitioner's claim (Florence County School District Four et al. v. Carter by Carter, ______U.S. ______, 114 S.Ct. 361 [1993]). However, the hearing officer found that the IEPs for both school years developed by the Maplebrook School provided detailed annual goals and short-term instructional objectives, but did not identify the child's classification or her special education needs. He further found that the record did not reveal the special education techniques used by the Maplebrook School. The hearing officer also found that the Maplebrook School was not the least restrictive environment for the child.

The third part of the Burlington test requires that equitable considerations support the parents' claim for tuition reimbursement. The hearing officer found that such considerations did not support petitioner's claim for tuition reimbursement for the 1992-93 school year, because she had reportedly failed to notify respondent of her intention to seek tuition reimbursement until seven months after the start of such school year.

The hearing officer denied petitioner's tuition claim for both years, but directed the CSE to conduct a complete evaluation of the child. Although it has not cross-appealed from the hearing officer's decision, respondent asserts in its memorandum of law that petitioner's request in this appeal for an order requiring the CSE to evaluate the child and prepare a new IEP is moot, because petitioner and the child are no longer residents of the Millbrook Central School District. Since respondent did not make its assertion it its answer, petitioner has not replied to the assertion. If petitioner and the child remove their residence from respondent's school district, respondent would no longer be obligated to provide the child with a free appropriate public education under Federal or State law (20 USC 1414 [a]; Sections 4401 [1] and 4402 [2][a] of the New York State Education Law). However, the record is inadequate to establish if petitioner intends to change, or has changed, her residence.

The central issues in this appeal are whether petitioner met her burden of proof with respect to the appropriateness of the Maplebrook School for the child during the 1992-93 and 1993-94 school years, and whether equitable considerations support petitioner's claim for tuition reimbursement. Neither party has challenged the hearing officer's findings with respect to the IEPs prepared by the CSE for the 1992-93 and 1993-94 school years, or respondent's failure to adequately evaluate the child. Although not raised before the hearing officer, I note that respondent did not demonstrate that the Karafin School was approved by the State Education Department to provide instruction to children classified as other health impaired, although it is approved to provide instruction to children with other classifications.

In Florence County School District For et al. (supra), the Supreme Court held that a parent's claim for tuition reimbursement for an unapproved private school was not barred, because the statutory definition of a free appropriate public education (20 USC 1401 [a] [18]), which includes a requirement that the services provided must meet State educational agency standards, did not apply to parental placements. Therefore, the fact that the private school in Florence County did not have a fully certified instructional staff or develop IEPs for its children did not preclude tuition reimbursement. However, the Supreme Court indicated that the private school placement must be proper under the substantive requirements of the Individuals with Disabilities Education Act (20 USC 1400 et seq.). In view of the Supreme Court's holding that the absence of a private school IEP did not preclude tuition reimbursement, I find that the hearing officer's concerns about the format of the child's IEPs at the Maplebrook School do not afford a basis per se for denying petitioner's claim.

In order to meet her burden of proof, petitioner must show that the Maplebrook School did address her child's special education needs, and that such school was the least restrictive environment for the child. The record reveals that the child has a neurological impairment which manifests itself in learning, as well as social, deficits. She has deficits in perceptual and visual motor functioning, and a significant deficit in her vocabulary, which directly affect her academic skills. In addition, her compulsive and impulsive behavior, difficulty dealing with change, distractibility, and difficulty maintaining a conversation have impaired not only her social development, but her academic development as well.

The Maplebrook School provides a highly structured instructional program, with a child to adult ratio of approximately 8:1. At the hearing, the Headmaster of the Maplebrook School described the school's extended day program, in which children receive instruction in socialization while participating in sports, doing supervised homework, or engaging in other, supervised school activities. He also described the school's individualized behavior management program that is integrated into the school's entire program, and is designed to lead children toward more independence in the school's program. Specifically, each child is assigned to a faculty member, who serves as the child's mentor and provides individual academic or social support, as needed. The child's mentor also reviews the child's progress in the behavior management program. The Headmaster testified that petitioner's child had rapidly risen to a very independent level of functioning in the behavior management program, and that the child's academic skills had improved as the child became more comfortable in the program.

At the hearing, respondent attempted to show that the child had academically regressed at the Maplebrook School. However, I do not find that to be true. Respondent's attempt to establish what the child's levels of academic performance and social development were when she left respondent's schools was seriously compromised by the CSE's failure to accurately report the child's performance levels on her IEP for the 1992-93 school year. Although the testimony of the child's former tutor established that by the 1991-92 school year the child knew some of the skills listed as goals or objectives in the child's IEPs for the 1992-93 and 1993-94 school years in the Maplebrook School, respondent did not establish that the child had in fact mastered those skills at the level prescribed in the Maplebrook IEPs.

The IEPs prepared by the Maplebrook School provide a series of goals and short-term objectives, set forth in sequential steps, in at least seven academic subjects for each school year. For each goal, the IEPs provide evaluation techniques to assess the child's achievement of objectives at a high level of accuracy to meet her annual goals. Although the Maplebrook IEPs do not specify the particular instructional techniques to be used, their incremental objectives, high levels of skill mastery, as well as the integration of the RISE program with the child's academic program, reveal that the child did receive individualized services to address her special education needs. Therefore, I disagree with the hearing officer's finding that petitioner failed to demonstrate that the child received specialized services in the Maplebrook School. The record reveals, through the Maplebrook IEPs and progress reports, that instruction was provided to the child at a rate consistent with her ability, in an effort to reduce her anxiety and promote success in the child's daily performance. Thus, her social and behavioral needs were addressed as an integral part of her instructional program, rather than solely as a related service like counseling. In his evaluation of February 17, 1993, the private psychologist recommended that the child be placed in an academic setting which was responsive to the child's emotional and learning needs, which are clearly linked. I find that the Maplebrook School provided such a setting for this child.

Respondent also asserted at the hearing that the child's private school placement was inappropriate, because it did not address her need for speech/language therapy and occupational therapy. For the 1992-93 school year, respondent's speech/language therapist recommended that the child receive speech/language therapy three times per week, with an emphasis upon strengthening her vocabulary skills, pragmatic language abilities and retention of auditory stimuli. For the 1993-94 school year, the therapist again recommended that such therapy be provided largely, or entirely, in small group sessions, three times per week, with an emphasis upon pragmatic and expressive language, and syntactical skills. The record reveals that in the Maplebrook School, a speech/language therapist worked in the classroom with the teacher to improve the children's speech, and that petitioner's child also received one period per week of "pull-out", small group speech/language therapy. In view of the small class size and the nature of the child's speech/language needs, I find that petitioner has demonstrated the appropriateness of the child's speech/language therapy program in the Maplebrook School. The child's occupational therapy needs are manifested largely in the awkwardness of her handwriting. Respondent's CSE recommended that the child receive occupational therapy during both of the school years in question. A private occupational therapist, who evaluated the child in September, 1993, opined that the child might have a mild motor planning deficit, but was not a candidate for direct occupational therapy services. In view of that recommendation, as well as the nature of the child's fine motor deficit, I find that the absence of occupational therapy from the program provided in the Maplebrook School does not afford a basis for concluding that such program was inappropriate.

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 sought (P.J. v. State of Connecticut, 788 F. Supp. 673 [D. Conn., 1972]; Application of a Child with a Disability, Appeal No. 94-4). At the hearing, the Headmaster of the Maplebrook School testified that the children who are enrolled in the School generally have low to average cognitive skills, with some deficits in their social development. In essence, the Maplebrook School appears to serve children with disabilities, and is therefore a more restrictive placement than the placement recommended by the CSE for the 1992-93 school year, in which the child would have been mainstreamed for mathematics, special subjects, lunch and recess. The CSE's recommendation of a private school for the child during the 1993-94 school year was equally restrictive with placement in the Maplebrook School. Although there is a clear preference for education in the least restrictive environment, the educational needs of each child must be considered in determining what is the least restrictive environment for the child. The presumption in favor of mainstreaming must be weighed against the requirement that each child receive an appropriate education (Briggs v. Board of the State of Connecticut, 882 F. 2d 688 [2nd Cir., 1989]). I have carefully considered the unique needs of this child, as well as her prior experience in the less restrictive setting of a special education program in respondent's elementary school (Daniel R. v. State Board of Education, 874 F 2d 1036 [5th Cir., 1989]). As the child's special education teacher testified with regard to the CSE's recommendation to decrease the child's mainstreaming for the 1992-93 school year, the issue was not simply whether the child could derive educational benefit from mainstreamed instruction, but also whether such instruction was appropriate, given the child's high level of anxiety about being in mainstreamed classes. I also note that the child's regular education teachers expressed their concern about the child's performance to the CSE. Having examined the child's overall educational experience in at least a partially mainstreamed environment, I find that during the 1992-93 and the 1993-94 school years, the child's placement in the Maplebrook School was consistent with the least restrictive environment requirement.

The last issue to be determined is whether equitable factors support petitioner's claim for reimbursement. The issue is specifically raised by the hearing officer's finding that petitioner's delay in requesting tuition reimbursement should preclude her claim for reimbursement during the 1992-93 school year. In essence, the hearing officer found petitioner to be guilty of laches, by not requesting an impartial hearing until seven months after the start of the 1992-93 school year. Contrary to the hearing officer's finding that petitioner had not informed respondent of her intention to seek reimbursement until her April 23, 1993 request for a hearing, I find that petitioner put the CSE chairperson on notice of her desire for tuition reimbursement when she met with the chairperson in August, 1992. At that meeting, petitioner informed the chairperson that the child would enter the private school in September, and requested that respondent pay for the child's tuition.

THE APPEAL IS SUSTAINED.

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

IT IS FURTHER ORDERED that respondent shall reimburse petitioner for her expenditures for the child's tuition at the Maplebrook School during the 1992-93 and the 1993-94 school years, upon petitioner's presentation to respondent of proof of such payment. Such payment shall not include any amount of money paid by a third party insurer for the child's tuition.