95-012

        Petitioner, the Board of Education of the Waterville Central School District, appeals from the decision of an impartial hearing officer, which held that respondent was required to provide transportation for respondents' child to and from an unapproved preschool program during the 1994-95 school year. Respondents cross-appeal from the hearing officer's decision, to the extent that it denied their request for tuition reimbursement at the private preschool in which they had unilaterally enrolled their son. The appeal must be sustained. The cross-appeal must be dismissed.

        Respondents' son became five years old in February, 1995. Therefore, he was eligible to receive educational services as a preschool child with a disability during the 1994-95 school year (Section 4410 [1][i] of the Education Law). The child, who reportedly needed to have oxygen administered to him at birth, was medically diagnosed as having an atypical seizure disorder, for which he was briefly hospitalized shortly before his second birthday. His seizure disorder has reportedly been controlled with medication. In March, 1992, the child was evaluated by the United Cerebral Palsy and Handicapped Persons Association of Utica (UCP). The UCP evaluators reported that the child exhibited appropriate eye contact and attending skills, and was able to follow simple directions. However, he reportedly had difficulty following more complex demands. The child was described as having normal range of motion, muscle tone and muscle strength, as well as age appropriate reflexes, fine and gross motor skills, and visual motor skills. The child's receptive and expressive language skills were at a two-year old (age appropriate) level. The child was observed to have a mild delay in his chewing skills, and to drool. His auditory awareness was reported to be adequate for language development.

        In April, 1992, the child was evaluated by a UCP psychologist, who reported that the child was "busy", but not hyperactive, and that his attention span varied. The child's performance on a test of his cognitive skills was equivalent to that of a thirty-four month old child, although he was only twenty-six months old when tested. As a result, he achieved an IQ score of 124. The psychologist opined that the child appeared to have skills well above expectation for his age, except for his language skills which were below expectation. She further opined that the child required very clear direction and structure, and would benefit from placement in a structured preschool or day care program.

        In July, 1992, the child was evaluated by a pediatrician at the State University of New York Health Science Center in Syracuse. The pediatrician reported that the child was of average intelligence, but that his speech intelligibility was mildly impaired. He noted the persistence of the child's drooling, and the child's speech pattern, which was characterized by the use of single words or telegraphic utterances. The pediatrician noted that the child appeared to have neurologically based impulsivity and a short attention span, and hypothesized that the child might have an attention deficit disorder. However, he refrained from diagnosing an attention deficit disorder, in view of the child's young age. He recommended that the child receive medical diagnostic studies, and that he be placed in a highly structured preschool program.

        The child also underwent a speech/language evaluation in July, 1992. The evaluator reported that the child's overall scores on the tests used in the evaluation were within normal limits for a child of his age, but that there was a "splintering" of skills, i.e., his skills ranged from the twelve month to the thirty-six month level. The evaluator further reported that the child's spontaneous speech was immature for his age, and that much of his speech consisted of one-word utterances. She noted that the child made several speech articulation errors, but found that the child could correctly imitate word sounds which had been modeled for him. In view of the child's reported cognitive abilities and his speech/language delays, the evaluator opined that the child should receive speech/language therapy before entering nursery school in the Fall of 1992.

        In October, 1992, the child was referred by his mother to petitioner's committee on preschool special education (CPSE), because of the child's delayed development of speech/language skills. He was re-evaluated at the UCP in November, 1992, to ascertain whether he required physical therapy, or occupational therapy. The UCP occupational therapist reported that the child exhibited an almost six month delay in the development of his fine motor skills, and she noted that the child displayed mild tremors in his unsupported arms. The therapist reported that the child's performance on tests of eye-hand coordination and visual perception was impaired by his inability to comprehend the verbal instructions given with such tests. While recommending that the child be reassessed in six months, the occupational therapist did not recommend that the child receive therapy. The UCP physical therapist reported that the child's range of motion and muscle strength were generally within normal limits, but noted that his muscle tone was in the low normal range in his body trunk and extremities. She also recommended that the child be reassessed in six months, but that he not receive physical therapy.

        At the hearing in the proceeding, the CPSE chairperson testified that the child was enrolled in a full-day "Building Blocks" instructional program of the UCP in December, 1992, and that he had remained in that program on a twelve-month basis until August, 1994. The record does not disclose a basis for such an intensive level of services, although the minutes of the CPSE meeting of September 20, 1993 indicate that the child was placed in the UCP program to address his developmental delays. In any event, the appropriateness of the UCP placement during that period of time is not an issue in this appeal.

        In a summary of the child's performance, dated May 13, 1994, the child's UCP teacher reported that the child had made significant progress in acquiring pre-academic skills, e.g., naming body parts and shapes and counting to 10 with one-to-one correspondence. She also reported that the child was generally independent, and was able to attend to task in a small group. However, she indicated that the child had difficulty sitting still and attending to task in a large group. Although she described the child as relating well to adults and peers, the UCP teacher reported that the child often displayed inappropriate actions. The teacher mentioned that a behavior management plan involving the use of positive reinforcement and "time-outs" for negative behavior had been employed. The UCP teacher recommended that the child attend a full day "structured preschool" setting for the 1994-95 school year, although she did not explain whether the term "structured preschool setting" was intended to mean a regular or special education class.

        During the 1993-94 school year, the child received speech/language therapy five times per week, occupational therapy three times per week, and physical therapy twice per week. The child's speech/language skills were evaluated on May 1, 1994. A UCP speech/language therapist reported that the child exhibited moderate delay in his receptive language skills, and a mild delay in his articulation skills. Noting that the child had made progress, the therapist recommended that the frequency of the child's speech/language therapy be reduced to three times per week during the 1994-95 school year. In a report, dated May 6, 1994, the child's physical therapist at the UCP indicated that the child exhibited a seventeen month delay in the development of his gross motor skills, and recommended that the frequency of the child's physical therapy be increased to three times per week using sensory integration techniques. The child's occupational therapist at the UCP reported on May 5, 1994 that the child continued to exhibit significant development delays in his fine motor skills, and recommended that the child receive occupational therapy three times per week.

        The recommendations of the UCP staff were discussed with the child's mother at a meeting held at the UCP. No representative of the school district or its CPSE attended that meeting. The reports of the child's therapists and his teacher, together with a one page summary, were reportedly sent to the CPSE. The single page summary indicated that the UCP recommended that the child be in a full day program, but provided no information about the recommended program. At the hearing in this proceeding, the CPSE chairperson testified that she believed that the UCP had recommended that the child remain in the UCP program for the 1994-95 school year, based upon the written reports of the UCP which were received by the CPSE. The child's mother testified that the UCP staff had recommended to her that she find a placement for the child in a regular education preschool program, and that she began to search for such a program in June, 1994.

        The CPSE was scheduled to meet with respondents in June, 1994, to decide upon the child's educational program for the 1994-95 school year. However, the meeting was not held until July 7, 1994, because of a reported scheduling problem. On July 7, 1994, the CPSE received a written addendum by the child's UCP teacher to her report of May 13, 1994. The UCP teacher reported that the child's behavior had recently changed when he interacted with peers outside of his classroom. Specifically, she reported that the child was less aggressive, more cooperative in play, more independent in solving problems, and required less adult intervention. The UCP teacher recommended that the child be placed in an integrated classroom, which she defined as a classroom with more appropriate role models to enhance the child's development of social skills. Although the teacher did not identify the setting in which the child's new behavior had been demonstrated, the child's mother testified at the hearing that in May, 1994, the UCP had placed the child for part of the day in a day care program which operated for UCP employees.

        The minutes of the CPSE meeting of July 7, 1994 indicate that an "integrated program", including both disabled and non-disabled children, at the UCP was discussed, but that petitioners did not like the ratio of children with disabilities to children without disabilities in that program. A similar program of the Board of Cooperative Educational Services of Madison and Oneida Counties (BOCES) known as the "Stockbridge program", which was an integrated program, was also discussed at the CPSE meeting. At respondents' suggestion, the placement of the child in the Montessori Children's Center (MCC) in Canastota, New York, was also discussed. The MCC was not approved by the Commissioner of Education for the provision of services to preschool children with disabilities. The CPSE chairperson explained to respondents that the CPSE could not recommend to petitioner that the child be placed in the MCC because it was an unapproved facility (See Section 4410[5][c] of the Education Law). Respondents and the CPSE did agree to prepare an Individualized Education Program (IEP) for the child to reflect the fact that he would remain in the UCP during July and August, 1994. The CPSE chairperson testified that it was understood that she would work with respondents to explore other placement possibilities for the child.

        In a letter to the CPSE chairperson, dated July 12, 1994, respondents asked for another meeting with the CPSE. They indicated in their letter that they planned to enroll the child in the MCC, and asked that arrangements be made for the provision of related services to the child in the MCC in September, 1994. At the July 7, 1994 CPSE meeting, respondents had also asked that the school district provide transportation for the child to attend the MCC. A representative of the State Education Department orally opined to the CPSE chairperson that petitioner could transport the child between his home and the MCC. However, in a subsequent letter to the CPSE chairperson, dated July 21, 1994, the Education Department representative opined that under the New York State Education Law, transportation could be provided to a preschool child with a disability receiving related services, but no special education, only from the child's home or child care site to the place where the child was to receive a special service or program.

        On August 2, 1994, the CPSE met with respondents and the child's UCP speech/language therapist. The minutes of that meeting indicate that the Stockbridge program was offered to respondents as a possible placement, although the CPSE did not know whether there was any space available for the child in the Stockbridge program. The CPSE also reportedly discussed the possibility of placing the child in a special education class for one-half of the day and in a regular education preschool program for one-half of the day. The CPSE denied respondents' request that it recommend that the child be placed in the MCC. In view of respondents' intention to have the child attend the MCC, the CPSE prepared the child's IEP for the 1994-95 school year to have the child receive 90 minutes per week each of speech/language therapy, occupational therapy, and physical therapy. However, it did not recommend any educational placement for the child.

        Immediately after the CPSE meeting on August 2, 1994, the CPSE chairperson ascertained that there was one space left in the Stockbridge program for the 1994-95 school year, and so informed respondents. The child's mother reportedly wanted to observe a class in the Stockbridge program, but could not do so until school began in September. The open space in the Stockbridge program was subsequently taken by another child. When she informed respondents in mid-September, 1994 that the seat in the Stockbridge program had been taken, the CPSE chairperson offered them the option of placing the child in an integrated preschool in the W. A. Wettel Elementary School of the Sherrill City School District ("Wettel program"). The child's mother did visit the Wettel program in September, 1994. The CPSE met again on October 12, 1994 to consider respondents' request that the amount of the child's occupational therapy and physical therapy be decreased. Those related services had been withheld, as of October 3, 1994, by the service provider, at respondents' request. On October 12, 1994, the CSE recommended that all of the child's related services, including the speech/language therapy he was receiving at his home, be reduced to 30 to 90 minutes per week on an as needed basis. However, the CPSE made no recommendation for the child's placement.

        By letter to petitioner's president, dated September 9, 1994, respondents requested that an impartial hearing be held to review the CPSE's recommendation, and indicated that they intended to seek reimbursement for their expenditures for the child's tuition and transportation to the MCC. The hearing began on November 29, 1994, and ended on December 1, 1994. In her decision, dated February 16, 1995, the hearing officer noted that the CPSE's lack of preparation for locating a new placement for the child was attributable to a breakdown in communication between the UCP and the CPSE, and that respondents had not been offered the opportunity to visit the Stockbridge program or the Wettel program before the start of school in September, 1994, but held that respondents were not entitled to obtain tuition reimbursement because the MCC was not approved by the Commissioner. However, she held that transportation to the MCC was a related service which could be provided by petitioner because the related services of physical and occupational therapy were already being provided by petitioner at the MCC.

        I will first consider respondents' cross-appeal. They assert that the hearing officer erred in premising her decision to deny tuition reimbursement upon the fact that the MCC was not an approved program for the provision of special education to preschool children with disabilities. They contend that petitioner failed to meet its obligation to provide the child with a free appropriate public education, as it was required to do under Federal and State law. 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, 674 F. Supp. 73 [N.D.N.Y., 1987]). The fact that the facility selected by the parents to provide educational services to their child is not approved as a school for children with disabilities by the State Education Department is not dispositive of the parents' claims for tuition reimbursement (Florence County School District Four et al. v. Carter by Carter, U.S. 114 S. Ct. 361 [1993]).

        Petitioner bears the burden of proving the appropriateness of the services it offered, while respondents bear the burden of proving the appropriateness of the services they obtained for their son at the MCC (Application of a Child with a Disability, Appeal No. 94-29; Application of the Bd. of Ed. Monroe-Woodbury CSD, Appeal No. 94-34). I find that petitioner failed to meet its burden of proof with respect to the appropriateness of the services it offered. Although petitioner's CPSE discussed the possibility of placing the child in an integrated program, it never recommended a specific placement in such a program, either the Stockbridge program or the Wettel program. Petitioner asserts that the CPSE had to limit its determination to the extent of related services to be provided to the child, because of respondents' determination to enroll the child in the MCC. I disagree with petitioner's assertion. Although the parents of a child with a disability always have the option of rejecting programs or services offered by a board of education, it is the board's responsibility, through its CPSE, to offer an appropriate program to address the child's special education needs. In this instance, the child reportedly had special education of such severity that he required placement on a twelve-month basis in a special education instructional program until September, 1994. In her testimony at the hearing, the CPSE chairperson asserted that the child's needs had not changed during the months of July and August, 1994. However, the CPSE's recommendation after its August 2, 1994 meeting addressed only the child's needs for speech/language therapy, occupational therapy,and physical therapy. I find that the CPSE failed to prove that it had offered an appropriate placement for the child, and that petitioner was not relieved of its obligation to offer an appropriate placement by respondents' preference for enrollment of the child in the MCC.

        With regard to second Burlington criterion, i.e., whether the services selected by the parents were appropriate, I have carefully reviewed the testimony by the sole teacher in the MCC and the limited documentary evidence in the record about the MCC. Upon the record before me, I am unable to find that respondents have met their burden of proof. The MCC teacher testified that the child attended the MCC for three hours per day on four days of the week, with seventeen other children between the ages of two and one-half to five. Although respondents' child was one of four children whom the teacher described as having special needs, the teacher did not testify that she provided any specialized instruction for the child. She testified that her classroom had several study areas for subjects including geography, science, reading, mathematics, and practical skills, and that each child was free to select whatever activities in which he or she wished to engage. Although the teacher provided approximately thirty minutes per day of group instruction, she testified that individual children are not required to participate in the group instruction. She further testified that she had seen a portion of the child's IEP, but gave no indication that she had attempted to follow it. Indeed, she admitted that she had not read any reports about the child from his physician or the UCP. The teacher further testified that she had agreed to allow the child to receive physical therapy and occupational therapy at the MCC, on condition that the therapists not single-out the child, and make their services available to all of the children in the class. She estimated that respondents' son participated in physical therapy less than fifty percent of the time, despite acknowledging that the boy continued to have gross motor and fine motor delays. The child's IEP of July 7, 1994 indicated that the child required a structured preschool setting to develop appropriate learning techniques for school success. There is no evidence in the record of a substantial change in the child's special education needs since that IEP was prepared. There is simply no basis in the record for finding that the MCC provides the child with the structured setting he requires, or otherwise addresses his special education needs.

        In view of my finding with regard to the second Burlington criterion, I need not reach the third Burlington criterion, i.e., whether equitable factors support the parents' claim for tuition reimbursement. I have also considered respondents' assertion that the United States Education Department has opined that when a school district places a child in a private preschool program for the purpose of receiving a free appropriate public education, the child's entire educational program, including the regular education portion of the child's program, must be at no cost to the child (Letter of April 15, 1994, Thomas Hehir to Thomas Neveldine; see also 16 EHLR 739; 20 IDELR 181). In this instance, the child was not placed by petitioner in the MCC. Therefore, the aforesaid opinions are not dispositive. When a child is placed in a private school by his or her parents, the school district in which the child resides is required to make certain services available to the child, but it is not required to pay for the child's education at the private school (34 CFR 300.403). For all of the foregoing reasons, I find that the cross-appeal must be dismissed, notwithstanding the hearing officer's error in premising her decision upon MCC's unapproved status.

        In its appeal, petitioner contends that the hearing officer erred as a matter of law in holding that petitioner was obligated to transport the child between his home and the MCC. The record reveals that the child is transported to and from the MCC in a forty minute ride in a taxi, four days per week. The child's mother testified at the hearing that respondents paid $120 per week for their child's transportation. The hearing officer noted that transportation can be a related service under Federal law, and that the child was receiving the related services of occupational therapy and physical therapy at the MCC. Her decision appears to have been premised upon the fact that the child was receiving those two therapies at the MCC. Petitioner concedes that transportation may be a related service under Federal law, but asserts that transportation is not a related service in this instance.

        Federal statute defines the term "related service" as:

"The term 'related services' means transportation, and such developmental, corrective, and other supportive services (including speech pathology and audiology, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, social work services, counseling services, including rehabilitation counseling, and medical services except that such medical services shall be for diagnostic and evaluation purposes only) as may be required to assist a child with a disability to benefit from special education and includes the early identification and assessment of disabling conditions in children." (20 USC 1401 [a][1])

        The fact that the term "transportation" is included in the Federal statutory definition of related services does not per se establish a child's right to receive transportation as a related service, because the statutory definition also includes the limitation that the service be required to assist the child to benefit from special education. In this instance, the only special education services which the child receives at the MCC are the related services of physical therapy and occupational therapy. He receives those services at the MCC because respondent chose to place him there, not because they are available only at that location. Therefore, he does not need transportation to the MCC in order to obtain access to the related services of physical therapy and occupational therapy. The Federal courts have held that a child with a disability who has been unilaterally placed by his or her parents in a private school must be provided with transportation as a related service, if the related service is designed to meet the unique needs of the child caused by the child's disability (McNair v. Oak Hills Local School District, 872 F. 2d 153 [6th Cir., 1989]; Felter v. Cape Girardeau School District, 810 F. Supp. 1062 [E.D. Mo., 1993]). As petitioner points out, there is no basis in the record for finding that respondents' child has unique needs because of his disability which require that he be transported to and from the school in which respondents have enrolled him.

        The New York State statutory and regulatory definitions of the term "related services" do not include transportation (Section 4401 [2][k] of the Education Law; 8 NYCRR 200.1 [gg]. However, State statute and regulation requires that suitable transportation be provided to school age children with disabilities (Section 4402 [4] of the Education Law), and to preschool children with disabilities (Section 4410 [8] of the Education Law). Nevertheless, neither of those provisions affords a basis for finding that respondent, and through it, Oneida County, has an obligation to transport respondents' child between his home and the MCC. The former statute is inapplicable because of the child's age. The latter statute requires that the municipality in which a child resides provide daily transportation between the "child care location" (which includes the child's home) and the "special service or program" which the child receives. However, as noted above, petitioner has made the related services of physical therapy and occupational therapy available to the child at the MCC, the facility in which respondents enrolled him. Therefore, the child does not require transportation in order to be able to benefit from the special service or program which petitioner provides.

THE APPEAL IS SUSTAINED.  THE CROSS-APPEAL IS DISMISSED.

IT IS ORDERED that the decision of the hearing officer, to the extent that it required petitioner to provide respondents' child with transportation, is hereby annulled.