94-024

Petitioners appeal from the decision of an impartial hearing officer which held that respondent had provided petitioners' child with an appropriate educational program for the 1993-94 school year, and which denied petitioners' request for tuition reimbursement for the private school in which they unilaterally placed the child during such school year. The appeal must be dismissed.

Petitioners' child is thirteen years old. During the 1993-94 school year, the child was initially enrolled in the seventh grade in respondent's junior/senior high school. In December, 1993, petitioners removed the child from respondent's school and enrolled him in the South Fork Christian School. The South Fork Christian School has not been approved by the New York State Education Department as a school for children with disabilities for purposes of State reimbursement to school districts for tuition costs, although that fact would not per se preclude tuition reimbursement to petitioners (Florence County School District Four et al. v. Carter by Carter, U.S. , 114 S. Ct. 361 [1993]).

The child reportedly experienced speech and motor difficulties at an early age, and was medically diagnosed as having static encephalopathy. The child was initially classified as multiply disabled while in the second grade in respondent's elementary school during the 1988-89 school year. The child's classification was changed to learning disabled when he was in the third grade. His classification was reportedly based upon his deficits in gross and fine motor skills and organizational skills, his difficulty maintaining attention, and his dysgraphia, i.e., difficulty with writing. The child has remained classified as learning disabled. Although the record reveals that the child has significant emotional problems, those problems have not been manifested in school. His classification is not in dispute, and will not be reviewed in this appeal (Hiller v. Bd. of Ed. Brunswick CSD, 674 F. Supp. 73 [N.D.N.Y., 1987]).

The child was provided with resource room services, speech/language therapy, physical therapy, occupational therapy and adaptive physical education for much of his elementary school education. He also received private speech/language therapy. Respondent discontinued its speech/language therapy for the child at the end of the 1990-91 school year. By the end of the 1991-92 school year, respondent's committee on special education (CSE) had recommended that the child's other supportive services, except for occupational therapy, be withdrawn, because the child no longer required them. During the 1992-93 school year when the child was in the sixth grade, he received indirect consultant teacher services provided by a special education teacher who monitored the child's progress, and occupational therapy on an as needed basis. The child reportedly was an above average student in elementary school. Respondent's director of pupil personnel services testified that the child's scores on standardized tests were always well above average. In May, 1993, when the child had almost completed the sixth grade, he achieved grade equivalent scores of 11.6 in reading, 12.6 in spelling, and 8.6 in mathematics on the Kaufman Test of Educational Achievement.

The CSE met on May 21, 1993, to prepare the child's individualized education program (IEP) for the 1993-94 school year, when the child was to enter the junior/senior high school for the seventh grade. The CSE recommended that the child receive two hours per week of consultant teacher services, and counseling on an as needed basis. The child's IEP also provided that the child be allowed to use a calculator and be provided with a lap-top computer. The latter was to be used for each written assignment of more than one or two sentences. The IEP further provided that the volume of the child's written work would be modified, and that time limits for testing would be waived and alternative forms of test responses be accepted. In addition, the IEP indicated that the child was to be seated near well-organized students to assist him in remaining on task, and would be provided with two sets of books for use at home and in school.

At the hearing in this proceeding, the CSE chairperson testified that the CSE met again on June 22, 1993, in response to concerns expressed by the child's mother about the adequacy of the recommended services. The CSE recommended that the child receive one period per day of resource room services, in lieu of the previously recommended consultant teacher service. The child's IEP was also revised to provide that he could take tests in special locations, and could use the services of a scribe. The CSE also recommended that the child receive a psychiatric evaluation, because petitioners had expressed concern about the child's behavior at home, which had reportedly included rage attacks and a threatened suicide.

On June 30, 1993, a psychiatrist engaged by respondent reported that the child's speech was fluent, but evidenced some dysarthria, and that he was oriented, but exhibited poor insight. Noting that the child had a history of neurological difficulties, along with an oddness of manner and an aloofness of affect, the psychiatrist reported that the child had difficulties in relationships. He also reported that the child's inflexibility led to significant difficulties in transition and change, and opined that the child appeared to respond in stressful situations with frustration intolerance and rage episodes in response to the differing personality styles of his parents. The psychiatrist chose the medical diagnosis of pervasive developmental disorder for the child, while noting that the child appeared to compensate for the disorder. He also reported that the child appeared to meet the criteria for having an intermittent explosive disorder. He recommended that the child continue to receive psychotropic medications which had been prescribed by his private psychiatrist, and recommended family therapy for petitioners and the child. The psychiatrist warned that the child might have difficulty adjusting to a new school and a new routine, and urged that the child be dealt with in a non-confrontational manner and that a member of the CSE meet with petitioners on a monthly basis.

In a letter dated August 27, 1993, Dr. John Klindienst, a private psychologist who had provided parent training for petitioners and therapy to the child since May, 1987, when the child was in kindergarten, advised the CSE that the child had a history of volatility and emotionality which were typically acted out when the child believed that he was in a safe situation. He further reported that the child tried hard during the school day to present himself in an appropriate manner, but frequently acted out at home in an agitated or violent fashion. Dr. Klindienst revealed that the child had a certain amount of conflict with his parents about completing his homework, and he urged the CSE to recommend that the child receive an additional period each day of resource room services so that he could organize his work and complete homework.

At approximately the same time, the child's private psychiatrist also wrote a letter about the child which was given to the CSE. The psychiatrist reviewed the child's use of various medicines to control the manifestations of either an attention deficit hyperactivity disorder (ADHD) or pervasive development disorder (PDD), and opined that it would be premature to diagnose the child's medical condition. The psychiatrist asserted that the child had been improving by all accounts, and recommended that the child be in a "supportive milieu along with the specific academic assistance that he already receives."

On August 30, 1993, respondent's school psychologist, Mr. Kenneth Grille,completed the child's triennial psychological re-evaluation. He reported that the child achieved a verbal IQ score of 104, a performance IQ score of 98, and a full scale IQ score of 101. Mr. Grille noted that the child's verbal and full scale IQ scores were substantially below the verbal IQ score of 139 and the full scale IQ score of 121 which the child's private psychologist had reported in May, 1989. The record reveals that different tests were used to assess the child's IQ in 1989 and 1993. Mr. Grille reported that the child's subtest scores were all in the average range, except that for the subtest which assessed the child's psychomotor speed which was significantly lower than the child's other scores. The child's performance on a test of his visual motor skills was reported to be in the average range. His visual motor integration skills were above average. In a test to determine if the child had an attention deficit disorder, he scored below average in attentiveness, but in the average range for impulsiveness and hyperactivity. However, the effect, if any, of his medication upon the test results could not be determined. Mr. Grille reported that the child exhibited a low self-concept, but opined that there were no emotional indicators present which would interfere with his learning or school performance. He recommended that the child continue to receive resource room services, and counseling on an as needed basis.

On September 7, 1993, the CSE recommended that the child's resource room services be increased to two periods per day, and that the child receive speech/language and occupational therapy evaluations. The CSE did not alter the other provisions of the child's IEP for the 1993-94 school year. The director of special education, the school psychologist and the child's mother met with the child's teachers on September 7, 1993, to discuss the provisions of the child's IEP.

Respondent's speech/language pathologist subsequently reported that when evaluated in September, 1993, the child achieved scores in the average to high average range in tests of his receptive and expressive language and vocabulary skills. Although the child reportedly exhibited a mild neuromuscular weakness, the speech/language pathologist concluded that the child's speech intelligibility was not compromised and that the child did not require speech/language therapy. Respondent's occupational therapist, who was asked by the CSE to investigate the child's need to use a lap-top computer, reported that a lap-top would not only assist the child in writing, but would also assist him in becoming more organized.

On September 17, 1993, the child reportedly brandished a kitchen knife and threatened to hurt himself, while at home. Although the child had never engaged in any harmful behavior in school, respondent's school psychologist conferred with the child's psychologist and his psychiatrist about the therapeutic counseling which the private psychologist would provide for the child. At the hearing in this proceeding, respondent's school psychologist testified that the child was somewhat withdrawn and had some difficulties with peer relationships, but that he generally got along well in school and had not exhibited emotional difficulties.

The child initially had difficulty adjusting to the academic demands of the seventh grade. In a progress report issued half way through the first quarter of the 1993-94 school year, two of the child's teachers noted that he was not completing homework assignments, and another teacher reported that the child was not organized. At the hearing in this proceeding, one of his resource room teachers testified that the child was not used to having daily homework assignments in each subject. The child's first quarter grades included: English 65, mathematics 74, science 75 and social studies 72. However, both of the child's resource room teachers testified that the child's academic performance improved during the first quarter, and one of the resource room teachers testified that the child's performance continued to improve during the second quarter of the 1993-94 school year.

At the start of school in September 1993, the child was provided by respondent with a lap-top computer to assist him with note-taking and written assignments as specified in his IEP. The computer was selected by respondent's director of pupil personnel services, upon the recommendation of respondent's secondary school principal. The principal testified at the hearing that the computer was selected, in part, because it was compatible with the computer in the child's home. The computer was programmed with two different programs to assist the child with writing. On three occasions when the principal checked the computer, he discovered that its programs had been altered and that computer games had been added to the computer's memory. The principal testified that he was able to re-program the computer after each of the first three incidents. However, the child thereafter reportedly used a particular program with the computer which rendered it unusable for its intended purpose, without being returned to the supplier for reformatting of its hard drive and purchase of new software. After the lap-top computer was sent to the supplier for reformatting, the principal programmed a second lap-top computer for the child. Although the second lap-top reportedly had a faster processing speed and longer battery life than the first lap-top, the second did not have the "windows" features including the computer games which were included in the first lap-top. The second lap-top had a monochrome display, while the first lap-top had a color display.

Around the beginning of November, 1993, the principal made the decision not to return the first lap-top to the child, after discussing the matter with the director of special education and the school psychologist. However, the child refused to use the second lap-top. The principal conferred with Dr. Klindienst, who advised principal that the child believed that he had been wrongly punished by having to use the second lap-top computer. Dr. Klindienst also advised the principal that the child would perseverate about having to use the first lap-top computer, until he felt that he had received an adequate opportunity to address the issue, but the psychologist did not offer the principal any specific advice to deal with the situation.

On December 10, 1993, the CSE met with petitioners, who had requested a review of the child's educational program. Petitioners expressed their dissatisfaction with the way in which the child's IEP had been implemented. They asserted that the child had not been provided with teacher prepared materials, such as notes and transparencies used with an overhead projector in classes, and that the notes of another student which had been provided to the child were inadequate. They also asserted that respondent had delayed seating the child next to organized students as required by his IEP, and challenged the principal's decision to not allow the child to use the first lap-top computer after it had been repaired. Petitioners requested that the CSE recommend that the child be placed in the South Fork Christian School, and presented the CSE with a brief letter from the child's psychiatrist supporting their request. However, the CSE declined to recommend that the child's placement be changed.

Petitioners placed the child in the South Fork Christian School, in mid-December, 1993. In a letter dated February 3, 1994, petitioners' attorney asked respondent to hold an impartial hearing to review the CSE's refusal to recommend a change of placement for the child, and to consider petitioners' request for tuition reimbursement. By agreement of the parties, the hearing did not commence until May 3, 1994. The hearing concluded on May 25, 1994. In his decision dated July 14, 1994, the hearing officer found that the educational program which the CSE had recommended on September 7, 1993 and declined to change on December 10, 1993 was appropriate to meet the child's needs, and was the least restrictive environment for the child. The hearing officer directed the CSE to make a recommendation for the child's educational program for the 1994-95 school year.

Petitioners assert that the hearing officer erred in finding that respondent had provided their child with an appropriate education. Respondent bears the burden of demonstrating the appropriateness of the program recommended by its 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). To meet its burden, respondent must show that the recommended program is reasonably calculated to allow the child to receive educational benefits (Bd. of Ed. Hendrick Hudson CSD v. Rowley, 458 U.S. 176 [1982]), and that the recommended program is the least restrictive environment for the child (34 CFR 300.550 [b]; 8 NYCRR 200.6 [a][1]). An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the child's needs, provides for the use of appropriate special education services to address the child's special education needs, and establishes annual goals and short-term 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).

Petitioners do not explicitly challenge the provisions of the child's IEP which the CSE prepared on September 7, 1993. The child's private psychologist, Dr. Klindienst, testified at the hearing in this proceeding that the child's IEP provided appropriate services and made appropriate modifications to address the child's needs. The child's IEP goals were to develop his organizational and study skills so as to improve his ability to complete assignments successfully, and to acquire compensatory techniques for participation in mainstream classes. Dr. Klindienst testified that the child's IEP goals were appropriate. He also testified that the child did not require a more restrictive educational placement than resource room services. However, petitioners do challenge respondent's implementation of the child's IEP. They assert that respondent failed to ensure that the child received teacher prepared notes and overhead projector transparencies, as required by his IEP. Although one of the child's resource room teachers acknowledged at the hearing that she had not obtained teachers' notes and transparencies from the child's regular education teachers, the resource room teacher opined that neither the notes nor transparencies were necessary because she reviewed another student's notes from the child's regular education classes each day with petitioners' child. According to the resource room teacher, the teacher prepared outlines shown in class on an overhead projector were copied by the students and were therefore incorporated in the student notes which she reviewed each day. Although there is nothing in the record to refute the resource room teacher's testimony, I must nevertheless find that respondent failed to implement this portion of the child's IEP.

Petitioners also assert that the student class notes were not provided to the child on a timely basis, and that such notes were of poor quality. Respondent's witnesses acknowledged that the student class notes were not provided to petitioners' child at the beginning of the year, but asserted that the child began receiving notes within a few weeks. The testimony of the child's mother was consistent with that of respondent's witnesses. Only one representative sample of another student's notes is included in the record. While the sample includes numerous misspellings, I credit the testimony of the resource room teacher that petitioners' child understood the contents of the notes and was not distracted by the misspellings.

Petitioners further assert that respondent did not immediately fulfill the IEP requirement that their child be seated next to well-organized students in each of his regular education classes. At the hearing, the child's mother testified that she was not aware that any seating assignment had been changed. However, respondent's witnesses testified that the child had been seated next to well-organized students in each class, but admitted that the seating assignments were not made until after the first few weeks of the school year.

Another portion of the child's IEP which respondent allegedly did not implement was the provision that the time limits on the child's tests be waived. At the hearing, respondent's witnesses acknowledged that in one instance a substitute teacher had erroneously failed to waive the time limit on a test. However, the child's resource room teachers testified that the child regularly completed tests in their resource rooms which had been begun in the child's regular education classes.

Petitioners assert that the child's resource room time was inappropriately spent completing tests, rather than doing homework assignments and developing his organizational skills. Petitioners rely upon the testimony of the child's private psychologist, who admitted at the hearing that his opinion about the allegedly inappropriate use of resource room time was based entirely upon his conversations with the child. Upon review of the testimony of each resource room teacher about the services which he or she provided to the child, I find that petitioners' assertion is without merit.

Petitioners also assert that respondent failed to address that child's emotional disability associated with his primary learning disability. They contend that the CSE inappropriately delegated to the building principal the tasks of selecting a lap-top computer for the child and substituting the second lap-top for the first lap-top. In addition, they contend that the decision to change models of lap-tops was a disciplinary action taken before a determination had been made that the child's misconduct was not a manifestation of his disability (cf. S-1 v Turlington, 635 F. 2d 342 [5th Cir., 1981]). I also find these contentions to be without merit.

The U.S. Department of Education has opined that any assistive technology device which a child requires must be listed in the child's IEP (20 IDELR 1216). State regulation requires that a child's IEP must describe any specialized equipment and adaptive devices needed for the child to benefit from education (8 NYCRR 200.4[c][2][vii]). It is a CSE's responsibility to determine whether a child requires the use of an assistive technology device in order to achieve his or her IEP goals (Application of a Child With a Disability, Appeal 93-33; Application of a Child With a Disability, Appeal 94-11). Respondent's CSE recommended that petitioners' child use a lap-top computer to compensate for his dysgraphia, but did not recommend a specific model of lap-top or any software to be used by the child. In the absence of any disagreement about the child's need for a lap-top or the purpose for which it was to be used, I find that the CSE fulfilled its responsibility to recommend the use of specialized equipment and adaptive devices. Petitioners do not assert that either the first or the second lap-top computer assigned to the child was inadequate for its intended purpose. Although the child preferred to use the first lap-top, it does not follow that the principal's decision to require the child to use the second lap-top was a punishment. The principal testified that he decided not to return the first lap-top to the child because its additional features were distracting to the child, who was reportedly using the computer to play games while in class.

Notwithstanding respondent's initial lapses in implementing all of the child's IEP provisions, I find that the child made reasonable progress towards achieving his IEP goals during the portion of the 1993-94 school year in which he was enrolled in respondent's school. The testimony of respondent's resource room teachers demonstrated that the child had made progress in developing his organizational skills and coping with the environment of his new school. The child's academic performance in the first quarter of the school year reflected his uncertainty in dealing with the new requirements imposed upon him. The male resource room teacher's testimony that the child's academic performance had continued to improve after the first marking period was unrefuted. At the hearing, the child's private psychologist testified that the child had become less oppositional and more positive about himself after he was enrolled in the private school. However, he conceded that a change in the child's medication which occurred shortly before the child was removed from respondent's school could have been responsible, in part, for the improvement in the child's emotional condition. Despite petitioners' preference for the private school, I find that respondent has met its burden of proving that it provided the child with an appropriate educational program.

A board of education may be required to pay for educational services obtained for a child by the child's parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]; Hiller v. Brunswick CSD, supra). In view of my finding that respondent has demonstrated that it provided an appropriate program, I must further find that petitioners are not entitled to tuition reimbursement by respondent, without reaching the issues of whether the private school selected by petitioners provided appropriate services and whether equitable considerations support petitioners' claim.

THE APPEAL IS DISMISSED.