Application of the BOARD OF EDUCATION OF THE MONROE-WOODBURY CENTRAL SCHOOL DISTRICT for review of a determination of a hearing officer relating to the provision of educational services to a child with a disability.
Anderson, Banks, Curran and Donoghue, Esqs., attorneys for petitioner, James P. Drohan, Esq., of counsel
Michael H. Sussman, Esq., attorney for respondents
Respondents' child, who is twelve years old, was reportedly slow in developing his speech. His speech delay may have been related to a hearing loss caused by recurrent ear inflammation. Relief was sought by inserting tubes into the child's ears. The child received speech therapy for two years prior to entering kindergarten in September, 1987. He was also enrolled in a preschool program for two years before kindergarten. The child was enrolled in a regular education kindergarten class for the 1987-88 school year.
The child repeated kindergarten during the 1988-89 school year. In November, 1988, the child was referred to the CSE because he reportedly had difficulty acquiring academic readiness skills and remaining focused upon academic tasks. Respondents' school psychologist, who evaluated the child, reported that the child had a verbal IQ score of 100, a performance IQ score of 112, and a full scale IQ score of 105. The child demonstrated superior ability on tasks involving abstract spatial relationships and abstract thinking, and a severe deficit in his auditory memory skills. Additional testing revealed that the child also had a deficit in his visual memory skills. His pre-reading and spelling skills were delayed by at least two years. The school psychologist opined that the child's visual and auditory memory deficits severely impeded his academic functioning, and recommended that the CSE consider placing the child in a self-contained special education class.
In December, 1988, the CSE recommended that the child be classified as learning disabled, and that he receive all instruction, except for "special subjects" such as art and music, in a self-contained special education class of no more than twelve children. The CSE also recommended that the child receive speech/language therapy twice per week to improve his auditory memory and speech articulation skills. With respondents' concurrence, the child entered petitioner's special education program in January, 1989. He continued to receive most of his primary academic instruction in special education through the 1993-94 school year. His speech/language therapy was discontinued at the end of the 1989-90 school year because his expressive and receptive language skills were reported to be within the average range, except in one area of articulation, when tested in January, 1990. While in elementary school, the child reportedly evidenced signs of distractibility. His behavior was monitored, but no specific programs or services were provided to address this behavior.
At the beginning of the 1989-90 school year, his third year in petitioner's schools, the child's reading and spelling skills were found to be below the beginning of the first grade level, while his mathematics skills were at the beginning of first grade level. As of May, 1990, the child's reading and spelling skills were reported to be at an early first grade level and his mathematics skills were at the mid-second grade level. The child's social studies and science skills were reported to be at an end of the second grade level. In May, 1991, the child's reading decoding, reading comprehension and spelling skills were still at the first grade level, while his mathematics and science skills were at the third grade level. The results of the standardized tests administered by petitioner revealed that although the child's reading comprehension skills improved by eight months during the 1990-91 school year, his reading decoding skills had improved by only one month during that period of time.
The child was re-evaluated in December, 1991 by petitioner's school psychologist, who reported that she had observed the child in his classroom. According to the school psychologist, the child required direct supervision to begin his assigned work and to remain on task. The child attained a verbal IQ score of 90, a performance IQ score of 117, and a full scale IQ score of 102. The school psychologist also assessed the child's academic achievement. She reported that the child had grade equivalent scores of 1.6 in reading, 1.7 in spelling, and 2.8 in mathematics, but noted that the child's reading and mathematics scores were negatively affected by the hasty responses he had given. The school psychologist further noted that the child's performance in spelling reflected his weak encoding skills and letter reversals. Although the child's visual-motor integration skills were found to be above age-expected levels, he was described as having very poor recall of visually presented information.
During the 1991-92 school year, the child was considered to be in the fourth grade, although he was enrolled in a special education class. In May, 1992, the child's letter-word identification skills were reported to be at the grade equivalent of 1.7, while his passage comprehension skills were at the grade equivalent of 1.9 and his spelling skills were at the grade equivalent of 1.8. His writing skills were at the end of the second grade level. However, the child's broad mathematical skills, i.e., the average of his mathematical calculation and mathematical application skills, were at the mid-fourth grade level. At the end of the 1991-92 school year, the CSE recommended that the child be assessed to ascertain his need, if any, for counseling. One of petitioner's school psychologists testified at the hearing that the CSE made its recommendation because of the concern expressed by one of the child's teachers that the child was frustrated and felt defeated by the academic demands which he faced.
The child remained in a self-contained special education class for all instruction, except in special subject areas, during the 1992-93 school year. His individualized education program (IEP) included general goals to develop his decoding and reading comprehension skills, as well as his spelling and writing skills. The child's IEP also included annual goals to develop his ability to complete tasks and to develop confidence in approaching new tasks. In its comments, which are part of the IEP, the CSE noted that the child's significant delays in reading and written language were affecting his self-esteem and motivation to perform. The CSE recommended that small group counseling be provided to the child once per week. The counseling was provided during the 1992-93 school year by one of petitioner's school psychologists.
In the late Fall of 1992, respondents had the child evaluated at their expense by an independent learning consultant, who had once been employed by petitioner as a school psychologist. The consultant reported that the child achieved grade equivalent scores of 1.7 in word identification, 1.7 in word attack and 2.7 in passage comprehension skills. On the general information subtest of the Peabody Individual Achievement Test-Revised, the child received a grade equivalent score of 6.8. The consultant also reported that the child's listening comprehension skills were at the fourth grade level, but noted that the child had significant difficulty repeating unrelated words in sequence. She opined that the child had a learning disability which was not language based, but involved many of the characteristics of dyslexia. The latter term was defined by the consultant to be an inability to master the phonetic and visual codes required for reading and spelling. She further opined that children with dyslexia have difficulty using graphic symbols for reading, spelling, and writing, and require a multisensory teaching technique, such as the Orton-Gillingham method. The consultant referred respondents to a private tutor, who began tutoring the child with the Orton-Gillingham technique in January, 1993. The consultant urged that the CSE consider beginning to mainstream the child in science and social studies, because she believed that he would benefit from the stimulation of being in regular education classes and could learn in such classes with additional assistance, such as tape recorded books. The consultant requested that the child's special subject teachers complete questionnaires about the child's classroom behavior to provide additional information about the nature and extent of the child's reported distractibility. The CSE chairperson and petitioners' school psychologist subsequently testified at the hearing in this proceeding that the teachers' responses to the questionnaire did not indicate any basis for referring the child to a physician for the possible diagnosis of an attention deficit disorder.
On January 27, 1993, the consultant met with petitioner's CSE, which recommended that the child receive an additional 90 minutes per day of instruction in reading, and that the child be mainstreamed for fifth grade science, with grading modifications. The CSE also recommended that further consideration be given to the child's reading and language arts programs as part of his future transition to additional mainstreamed classes.
The child's achievement was assessed again in May, 1993, when he was nearing the completion of the fifth grade. He achieved grade equivalent scores of 1.9 in letter-word identification, and 2.4 in passage comprehension, which was the equivalent of a 2.1 grade equivalent in broad reading skills. His spelling skills were reported to be at a mid-second grade level, while his broad written language skills were at 2.8 grade equivalent.
When the CSE reconvened on June 8, 1993 to prepare the child's IEP for the sixth grade during the 1993-94 school year, it described the child as having made "good steady progress." The CSE recommended that the child continue to receive primary instruction in special education in fourth grade language arts and mathematics and sixth grade social studies, and that he be mainstreamed for his other subjects. It indicated that further consideration would be given to mainstreaming him in social studies, after the child had completed the first ten weeks of instruction. It also recommended that the child continue to receive small group counseling once per week. Although the child was described in his IEP as prone to distractibility and off-task behavior, there were no specific annual goals and short-term instructional objectives in the 35 page IEP which dealt with his behavior. The IEP included one annual goal which addressed the child's deficit in decoding skills, for which there were five instructional objectives, such as identifying "y" as a vowel, identifying the syllables in a given word, identifying synonyms, homophones and homonyms. It also included annual goals for the child to develop a sight vocabulary, i.e., learn to recognize certain words without decoding them, and to develop word recognition. One of the child's annual goals was to develop fluency in oral reading, while another was to develop his reading comprehension. However, fifteen of the thirty-five pages of the IEP were devoted to a sequential presentation of goals and objectives for the child's language arts program, not withstanding the fact that his primary learning disability involves difficulty with reading.
During the Summer of 1993, the child was enrolled by his parents in a private school which provided the child with reading instruction using the Orton-Gillingham technique. The private school reported that the child's reading skills had improved from a grade equivalent of 1.8 to 2.8, or one year's growth, during the two months in which he was enrolled in the school's program. However, petitioner's standardized test results from June, 1993 and September, 1993 reveal that the child improved in reading skills from a grade equivalent of 2.1 to 2.3, or two months growth.
On September 28, 1993, petitioner's speech/language therapist re-evaluated respondents' child. The therapist noted that the child had exhibited "mid-average" language skills, when the therapist had tested him in January, 1993. In the September, 1993 evaluation, the child's score on a test measuring his vocabulary, grammar and pragmatic language skills was in the lower end of the average range. He continued to have difficulty with the sounds of the letters "R' and "L" in his speech, notwithstanding the speech/language therapy he had previously received for those articulation errors. On a test designed to measure his ability to use language to think logically, the child achieved a below average score. The therapist reported that the child's composite score of 91 on the Test of Language Competence was comparable to his verbal IQ score, but significantly lower than his general performance potential. He opined that this difference was evidence of a language based learning disability. The therapist explained that the child was able to interpret the intent of most messages he heard, but had difficulty expressing himself with appropriate utterances. The therapist recommended that the child receive small group speech/language therapy twice per week. On September 29, 1993, the CSE recommended that the child receive speech/language therapy, and discussed the possibility of providing the child with additional reading instruction. However, respondents declined petitioner's offer to provide speech/language, and the CSE reached no conclusion about providing more reading instruction.
In December, 1993, the child was re-evaluated by the private educational consultant, who reported that the child achieved a verbal IQ score of 111, a performance IQ score of 115, and a full scale IQ score of 113. The child's verbal IQ score in December, 1993, was 21 points above the score which he had achieved when tested by petitioner's school psychologist in December, 1991. The consultant reported that the child evidenced a substantial deficit in portions of the IQ test which measured his symbolic sequencing and memory skills. She also reported that the child achieved grade equivalent scores of 2.1 in word identifications skills, 2.4 in word attack skills, and 2.4 in passage comprehension skills. She observed that the child was reading at a beginning to middle second grade level, without the "painful struggles" which she had observed in him during her initial evaluation of the child in December, 1992. She reported that the child attacked words with more confidence than he had done previously. With regard to the deficits in the child's expressive language skills which had been reported by petitioner's speech/language therapist, the consultant opined that they could be a result of the child's reading problems which had deprived him of the verbal and reasoning stimulation which children without reading problems receive. She asserted that the child's language needs could be addressed in a more pragmatic fashion by providing him with additional mainstream education opportunities and teaching him to read and construct sentences.
Although the educational consultant opined that the child had displayed a good response to the multisensory Orton-Gillingham methods employed by the child's private tutor, she criticized the child's IEP for the 1993-94 school year as inappropriate to the child's learning needs. In essence, she opined that the IEP devoted too little attention to the development of the child's decoding and phonics skills, which she asserted had to be addressed before his language arts skills could be fully developed. The consultant recommended that the child receive the daily instruction in school using the Orton-Gillingham methodology and that he be taught to use a computer to develop his writing skills. The consultant further recommended that the child be immediately mainstreamed in social studies. She also recommended that the child have an independent evaluation by a speech/language therapist.
An independent speech/language evaluation of the child was conducted on February 10, 1994. The independent evaluator reported that the child exhibited a significant discrepancy between his receptive and his expressive language skills, with the former being higher than the latter. Noting that the child's receptive language skills had declined from the level he had demonstrated in 1990, the evaluator concurred with the CSE's decision to provide the child with speech/language therapy. However, she opined that such therapy, while improving the child's language skills, would not improve his ability to read.
In preparation for a meeting which was held on March 11, 1994, the CSE obtained a report from the school social worker who counseled the child during the 1993-94 school year, a summary of the child's psychological evaluations prepared by one of petitioner's school psychologists, a report from the child's special education teacher, and updated achievement test scores for the child. The school social worker reported that the child's counseling had centered upon improving the child's ability to work in difficult areas and to seek assistance with his work, when appropriate. He recommended that counseling continue for the child. The child's special education teacher reported that the child continued to have trouble reading words which had long vowels, but had made progress in identifying letter blends and increasing his sight word vocabulary. He also reported that the child's reading comprehension skills had improved. The teacher described the child as very cooperative during before-school voluntary tutoring which the teacher had begun in January, 1994, but that he frequently played with objects or drew sketches during instruction in class. The school psychologist, who had surveyed the child's teachers about the child's ability to remain attentive during class, reported that the child's behavior was not "statistically significant", yet should be addressed by techniques such as entering into contracts with a child to achieve desired behavior. On standardized tests administered to the child on March 1, 1994, he achieved grade level equivalent scores of 2.2 in letter-word identification, 3.4 in passage comprehension, 2.5 in spelling, 4.4 in writing samples and 6.6 in mathematical calculation. His grade equivalent broad reading score of 2.7 was an improvement of 4 months over the score he had obtained when tested in September, 1993.
On March 11, 1994, the CSE recommended that the child be mainstreamed for social studies and that he receive one period per day of resource room service for the provision of individualized reading instruction. The CSE indicated that the resource room teacher should meet with the child's special education teacher, the school psychologist, and the child's private tutor to coordinate reading activities for the child. The CSE considered, but rejected respondents' request that petitioner pay for the services of the private tutor. The child's IEP was revised by the CSE to include twenty-one specific instructional objectives relating to the IEP goal of improving the child's decoding skills.
In a letter to the CSE chairperson, dated March 24, 1994, respondents requested that an impartial hearing be held to review the adequacy of the child's IEP and petitioner's failure to provide the child with an Orton-Gillingham trained tutor. The hearing did not commence until the 1993-94 school year had almost ended. When the hearing did take place, its scope was broadened to include the appropriateness of the child's program for the 1994-95 school year.
On June 20, 1994, standardized achievement tests were administered to the child. He achieved grade equivalent scores of 3.1 in letter-word identification, 4.6 in passage comprehension, 2.2 in spelling, and 8.2 in writing. The child's grade equivalent broad reading score was 3.7, while his broad mathematics score was 7.1. At the time he was tested, the child was completing the sixth grade in petitioner's Pine Tree Elementary School.
The CSE met on June 23, 1994, to prepare the child's IEP for the 1994-95 school year, during which the child would be in the seventh grade in petitioner's Middle School. The CSE recommended that the child receive instruction in seventh grade language arts in a special education class, but that he be mainstreamed for the remainder of his instruction. However, the CSE also recommended that the child receive seven periods per week of resource room services to provide instruction in reading and support for his mainstream instruction. It also recommended that the child continue to receive small group counseling once per week and speech/language therapy twice per week. In response to respondents' request that the child's reading instruction be provided by a teacher trained in the Orton-Gillingham methodology, the CSE indicated that it expected that such a teacher would be assigned to the resource room. It also agreed to meet again with respondents in August, 1994, after respondents had discussed the child's proposed program with their consultant. Petitioner has annexed to its petition a copy of an IEP prepared on August 30, 1994, more than three weeks after the hearing in this matter had ended. I note that it is substantially similar to the IEP of June 23, 1994, and I have not relied upon the August IEP in rendering my decision.
On June 27, 1994, the private consultant tested the child's reading and writing skills. The consultant reported that the child had achieved grade equivalent scores of 2.2 in word identification, 3.4 in word attack (phonics), and 2.7 in passage comprehension. The standard score of 91 which the child received for word attack (phonics) skills were conceded by the consultant in her testimony to be within the average range. In a test of his oral reading skills, the child achieved a grade equivalent score of 2.8. The consultant reported that the child received a standard score of 71 as his spontaneous writing quotient, which she opined was the equivalent of the work of a second grader. Although his score was substantially below the 8.2 grade equivalent in writing reported by petitioner in the results of its May, 1994 standardized tests, the consultant conceded at the hearing that the spontaneous writing quotient was only one component of an assessment of the child's writing ability, while the score reported by petitioner was based upon more than the child's spontaneous writing quotient.
The hearing in this proceeding began on June 6, 1994, and ended on August 4, 1994. The hearing officer rendered his decision on September 27, 1994. The central issues before the hearing officer were whether the Monroe-Woodbury Central School District had provided an appropriate program for the child to date, and whether the program proposed by its CSE for the 1994-95 school year was appropriate. The hearing officer found that there was no basis in the record for concluding that only Orton-Gillingham reading instruction could remediate the child's disability, or that the private tutor had achieved any significant acceleration in the child's reading skills during the year and one-half in which she tutored the child. The hearing officer resolved the first issue in the school district's favor, thereby foreclosing respondents' claim for reimbursement for the tutor's services. With regard to the child's proposed program for the 1994-95 school year, the hearing officer found that the child continued to exhibit a substantial deficit in his reading ability which significantly impaired his ability to function in other academic areas. He further held that the child required a more specialized and intensive reading education in an environment which would make appropriate accommodations for his reading deficits, than had been recommended by the CSE. However, he held that the record was inadequate to afford a basis for concluding that the private school in which respondents had placed the child was the only appropriate placement for the child. He ordered that the matter be remanded to the CSE to search for a placement in which the child could receive instruction in reading and other subjects from teachers trained in the education of dyslexic students.
There is no dispute about the child's classification as learning disabled. He has substantial deficits in his ability to read and spell, and lacks appropriate decoding skills. Although his disability was described by various witnesses at the hearing as dyslexia, there is no precise definition of that term in the record, nor is it necessary to define that term in order to reach a decision in this matter. The record is replete with test results, and there was extensive testimony about the manner in which the tests were administered, the validity of some test results, and the comparability of the test instruments which were used. Nevertheless, one informal test illustrated the extent of the child's reading disability. On June 27, 1994, when the child was within one month of becoming twelve years old and had just completed sixth grade (his seventh year in elementary school), the child was asked by the private educational consultant to read a passage from the book Tuck Everlasting by Natalie Babbitt. He had previously read the book in his resource room and special education classes during the 1993-94 school year. A tape recording of the child reading a passage from the book is part of the record. While of poor quality, the recording reveals how painfully difficult it can be for the child to read and comprehend.
Petitioner asserts that the hearing officer erred by remanding the matter to its CSE to recommend another program or placement for the child. It argues that the record demonstrates that it has fulfilled its procedural and substantive obligations under Federal and State law, by accurately identifying the child's disability and providing appropriate programs and services to meet his needs. It asserts that the child has made "slow but steady progress" in learning to read, and that the hearing officer erroneously assumed that the child could not be successful in mainstreamed seventh grade classes because of his reading disability.
Petitioner 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 Handicapping Condition, Appeal No. 92-7; Application of a Child with a Disability, Appeal No. 93-9). To meet its burden, petitioner must show that the recommended program is reasonably calculated to allow the child to receive educational benefits (Bd. of Ed. Hendrick Hudson CSE v. Rowley, 458 U.S. 176 ), and that the recommended program is the least restrictive environment for the child (34 CFR 300.550 [b]; 8 NYCRR 200.6 [a]). An appropriate program begins with an IEP which accurately reflects the results of the evaluation 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 of June 23, 1994 describes the child's needs in general terms, including his need for an individualized small group approach for instruction involving "carefully presented, sequential materials to reduce frustration", and a program which would "prevent him from feeling overwhelmed by school related responsibilities". However, I find that it does not report the child's present levels of performance in the area of his disability with sufficient precision to assist the teachers who would have to implement the IEP (cf. 8 NYCRR 200.4 [c][i]). Although the IEP reported the child's broad reading score, it did not reveal the levels of his reading vocabulary, word attack, and dictation (spelling) skills. That information, whether derived from test scores or from the child's performance on his annual goals and short-term objectives for the 1993-94 school year, was essential to prepare appropriate annual goals and short-term instructional objectives, for the 1994-95 school year.
The child's 44-page IEP included one annual goal relating to reading decoding, for which there were 14 objectives, and one annual goal for developing "study skills related to reading" with 8 objectives. The IEP also included 6 annual goals with 18 instructional objectives, relating to improvement of the child's study skills and completion of his mainstream course work which were to be accomplished in the child's resource room program, in addition to the 2 annual goals and 22 objectives relating to improving the child's reading skills. According to the child's IEP, the child would receive resource room services for a total of seven hours per week. For language arts, the IEP listed one goal for spelling, one goal for listening/speaking, four goals for writing, one goal for handwriting, one goal for literature, and one annual goal involving study skills in the language arts. There were 62 short-term instructional objectives relating to language arts, which were to be achieved in the child's one period per day of language arts in a special education class. In the absence of adequate information about the child's attainment of his 1993-94 annual goals and objectives, 1994-95 annual goals and objectives can not be determined. Accordingly, I must find that petitioner has not met its burden of proof with respect to the appropriateness of the child's IEP annual goals and short-term instructional objectives.
In addition, I have considered the child's reported education performance to date in determining the likelihood of his success in achieving the plethora of his 1994-95 IEP goals and objectives with the programs and services recommended by the CSE. My review of the child's prior academic performance was not predicated upon a need to ascertain whether the petitioner's program in prior years was inadequate. Nor was it an attempt to fix responsibility upon petitioner as a guarantor of the child's ultimate academic success, because it has no such responsibility. Indeed, a child's IEP is not a performance contract by which a school district is be held accountable if the child fails to reach the performance levels projected in the IEP (34 CFR 300.350). However, it is petitioner's responsibility to provide an educational program which is "reasonably calculated to allow the child to receive educational benefits" (Bd. of Ed. Hendrick Hudson CSD v. Rowley, supra).
The record reveals that the child has made slow progress in learning to read since he was initially classified as learning disabled in December, 1988. At that time, the child's pre-reading skills were delayed by approximately two years. Since that time, he has progressed to be able to read at approximately the third grade level. The child has received almost all of his academic instruction in self-contained special education classes, in which his teachers reportedly employed multisensory techniques to allow him to understand the information which they imparted to him. Whether those techniques were identical to those of the Orton-Gillingham method favored by respondents and their educational consultant was closely contested by the parties during the hearing. The hearing officer was not persuaded by the evidence that the only way the child can only learn to read is by the strict and exclusive use of the Orton-Gillingham technique. I concur. However, there is no disagreement that the child requires the use of multisensory techniques to benefit from instruction generally. In addition, the child will continue to need special education for primary instruction in learning to read, in view of the nature of his disability. A review of the record reveals that the child's reading skills began to improve more rapidly in the 1993-94 school year, after he had received additional assistance in reading from a resource room teacher and a private tutor in the latter half of the preceding school year and after his sixth grade special education teacher had also given him additional individual instruction in the 1993-94 school year.
The program recommended by the CSE for the 1994-95 school year would have provided the child with significantly more opportunities for a mainstreamed education. However, neither the IEP nor the witnesses presented at the hearing by petitioner revealed how the child could be successfully maintained in his mainstreamed classes, with his significantly limited reading, spelling and writing skills. The child's approximately one year of experience in mainstreamed science and brief experience in mainstreamed social studies while still supported by extensive special education services are not, in my opinion, reliable evidence of his future success in a far more extensive mainstreamed program. Although the child would continue to receive special education primary instruction in the language arts, including spelling and writing, he would no longer receive special education primary instruction in reading, because his reading instruction would be provided in the resource room. A resource room program provides supplementary rather than primary, instruction (8 NYCRR 200.1 [hh]). Moreover, I find that petitioner has not explained how the extensive list of IEP goals and short-term instructional objectives could be achieved by the child in the relatively limited amount of 12 periods per week of special education and resource room services. Therefore, I must find that petitioner failed to meet its burden of proof with regard to the appropriateness of the program recommended by its CSE for the 1994-95 school year. I further find that the hearing officer did not abuse his discretion in remanding the matter to the CSE to recommend a new program for the child.
In their cross-appeal, respondents assert that the hearing officer erred by not directing petitioner to pay for the child's tuition at the private school in which they unilaterally placed the child for the 1994-95 school year. Respondents placed their child in the Windward School in White Plains, New York. The Windward School 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, although that fact is not dispositive of respondents' claim for tuition reimbursement (Florence County School District Four et al. v. Carter by Carter, U.S. , 114 S. Ct. 361 ). 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 consideration support the parents' claim (School Committee of the Town Burlington v. Department of Education Massachusetts, 471 U.S. 359 ; Hiller v. Brunswick CSD, 674 F. Supp. 73 [N.D.N.Y., 1987]). I have found that petitioner did not meet its burden of proof with respect to the first Burlington criterion.
With regard to the second Burlington criterion, respondents bear the burden of proving the appropriateness of the educational program which they have obtained for their son (Application of a Child with a Disability, Appeal No. 94-29). They must show that the services which the Windward School is providing to their child are "proper under the Act [Individuals with Disabilities Education Act]" (School Committee of the Town of Burlington, supra370), i.e., that the private school is offering an instructional program which meets the child's special education needs. On the last day of the hearing, the hearing officer advised respondents and their attorney that the few brief references to the Windward School which their educational consultant had made did not provide him with sufficient information about the Windward School. Thereafter, the child's mother testified about some of the things which the Windward School staff had told her about the School. Respondents also submitted in evidence a brief brochure about the Windward School. Upon review of the record before me, I must concur with the hearing officer's finding that he had insufficient information about the Windward School to determine whether its services were appropriate to the child's needs. I must note that the hearing officer did not exclude the possibility that petitioner would ultimately be required to pay for the child's attendance at the Windward School, but he directed the CSE to first consider other programs, if any, which would be appropriate and would be the least restrictive environment for the child.
Respondents also appeal from the hearing officer's refusal to direct petitioner to reimburse them for the cost of the tutoring services which they obtained for the child. The child's mother testified that respondents had engaged the tutor's services in January, 1993, and that the tutor had worked with the child two hours each week since then at the rate of $30 per hour. She estimated that she and her husband had paid the tutor approximately $1400. Respondent's request for reimbursement is also subject to the Burlington criteria (Application of a Child Suspected of Having a Disability, Appeal No. 93-9; Application of a Child with a Disability, Appeal No. 94-6).
The initial question is whether petitioner offered an appropriate program for the child during the latter one-half of the 1992-93 school year and the entire 1993-94 school year. I have carefully considered the testimony of respondents' educational consultant and that of the tutor, as well as the rest of the testimony and documentary evidence in the record. Upon receipt of the consultant's report, in January, 1993, the CSE recommended changes in the child's program including 90 minutes per day of additional instruction in reading, and mainstreaming for science. End-of-year standardized testing results indicated that the child continued to make progress in reading during the 1992-93 school year. During the 1993-94 school year, the child received individual instruction from his special education teacher for a portion of the year, in addition to the special education which the child received in his special class. The special education teacher testified that a private reading consultant who observed the child in the teacher's class had informed him that he was providing appropriate reading instruction for the child. However, petitioner has not demonstrated whether the child achieved, or made reasonable progress towards, his IEP goals and objectives for either the 1992-93 or the 1993-94 school year. Upon the record before me, I find that petitioner has not met its burden of proof on the first Burlington criterion. With regard to the second criterion, i.e., the appropriateness of the services offered by the tutor, respondents bear the burden of proof. I note that the tutor acknowledged at the hearing that she had not pretested and post-tested the child, which would have provided a frame of reference for determining the efficacy of her services. In addition, the tutor did not describe in sufficient detail the instruction which she had provided since January, 1993. Accordingly, I must sustain the hearing officer's holding with respect to respondents' claim for reimbursement for the tutor's services.
Although respondents have also requested that petitioner be directed to transport their child between home and the Windward School, I decline to do so for two reasons. First, the issue was not raised at the hearing. Secondly, petitioner's responsibility to provide appropriate transportation is explicitly set forth in Section 4402 (4)(d) of the Education Law. I have no reason to believe that petitioner will not comply with its obligations under this statute.
THE APPEAL IS DISMISSED.
THE CROSS-APPEAL IS DISMISSED.