95-024

Petitioners appeal from the decision of an impartial hearing officer which denied petitioners' request for an order requiring respondent to reimburse them for the cost of their daughter's tuition at the private school in which petitioners placed the child for the 1994-95 school year. The hearing officer denied petitioner's request for reimbursement, despite having found that the child's individualized education program (IEP) prepared by respondent's committee on special education (CSE) was deficient. He rejected petitioners' tuition reimbursement claim on the ground that the private school in which petitioners unilaterally placed the child was not the least restrictive environment for her. I concur with the hearing officer's finding with regard to the least restrictive environment for the child; the appeal must therefore be dismissed.

Petitioners' daughter is fourteen years old, and was in the eighth grade during the 1994-95 school year. In May, 1989, the child was referred by her second grade teacher to the CSE because the teacher suspected that the child might have a learning disability. The teacher reported that the child had great difficulty maintaining attention in a large group, and that she didn't complete assignments. She noted that the child did not apply English and spelling skills to her work.

In a psychological evaluation performed in May, 1992, the child achieved a verbal IQ score of 119, a performance IQ score of 111, and a full scale IQ score of 118. Those scores placed the child in the high average range of cognitive ability. Within the verbal portion of the IQ test, the child exhibited evenly developed skills. However, the child's scores within the performance portion of the test ranged from superior to low average. Her performance on a test of her visual motor integration skills was in the lower end of the normal range. Respondent's school psychologist reported that the child's performance on an academic achievement test was significantly below age and ability expectations, and that she evidenced low frustration tolerance. Respondent's educational evaluator, who described the child's cognitive ability as being at a 3.2 grade equivalent when she was in the latter one-half of the second grade, reported that the child's reading achievement was at a 3.3 grade equivalent, and her written language skills were at a 3.4 grade equivalent. Notwithstanding the latter score, the child's teacher reported that writing was a difficult and time-consuming task for the child. A speech/language evaluation revealed that the child's speech/language skills were in the average range.

In June, 1989, respondent's CSE recommended that the child be classified as learning

disabled, and that for the 1989-90 school year she receive resource room services for one hour per day while in the third grade. The child's IEP goals included improving her reading, spelling and writing skills. The child's resource room teacher during the 1989-90 school year reported to the CSE that the child's reading and spelling skills had improved perceptibly. Nevertheless, her reading skills were reported to be below grade level. The resource room teacher also reported that the child continued to have difficulty expressing herself in writing.

In March, 1990, the CSE recommended that the child continue to receive resource room services five days per week for the fourth grade during the 1990-91 school year. In September, 1990, by agreement with petitioners, the amount of resource room services was decreased to four days per week. In May, 1990, as she neared the end of the third grade, the child had achieved grade equivalent scores of 3.8 in total reading, 3.5 in total language, and 3.2 in total mathematics on standardized tests. In March, 1991, the child's resource room teacher reported that the child had made progress in developing her reading decoding and comprehension skills, but that her skills remained below the appropriate grade level. The resource room teacher opined that the child's poor long and short-term auditory memory skills had adversely affected her phonetic skills, and that her ocular incoordination affected her tracking ability, i.e. ability to follow words as they were written. She described the child's spelling and handwriting as having improved.

The CSE, which conducted its annual review near the end of March, 1991, recommended that the child receive resource room services once per day while in the fifth grade during the 1991-92 school year. Her IEP included annual goals to improve her reading decoding, handwriting, and mechanics of writing (spelling, capitalization and punctuation).

During the 1991-92 school year, the CSE performed its triennial evaluation of the child. An educational evaluation, which was completed in December, 1991, when the child was almost mid-way through the fifth grade, revealed that her letter-word identification skills were at a 3.8 grade equivalent, while her passage comprehension skills were at a 5.1 grade equivalent. The evaluator reported that the child could understand reading passages, even when she was unable to decode all of the words in those passages. The child's total mathematical skills were found to be at a 4.8 grade level. The evaluator reported that the child had achieved grade equivalent scores of 2.4 in broad written language, 3.1 in dictation, and 2.0 in "writing samples". Although the child was reported to have good ideas and verbal expression, the evaluator opined that the child had great difficulty expressing her ideas in writing, and recommended that she receive intensive remedial assistance to improve her writing skills.

In March, 1992 the child's cognitive skills were reassessed. She achieved a verbal IQ score of 122, a performance IQ score of 118, and a full scale IQ score of 123. The child exhibited relative weakness in performing short-term memory tasks and visual motor perceptual tasks. The results of standardized achievement tests administered to the child in March, 1992 were comparable to the results reported by the educational evaluator in December, 1991. The child's resource room teacher reported to the CSE that the child had achieved grades ranging from "A-" to "C+" in her regular education courses during the first two marking periods of the 1991-92 school year. In March, 1992, the child began to be privately tutored twice per week. The tutor used the multisensory Alphabetic Phonics program for instruction in reading. The record indicates that the tutor continued to assist the child until February, 1993. The child's final report card for the 1991-92 school year indicated that she had received final grades of "A" or "B" in all academic subjects. By June, 1992, the child had achieved her IEP short-term objective of improving her ability to decode short vowel sounds, and both of her objectives with regard to improving her study and organizational skills.

In April, 1992, the CSE recommended that the child receive resource room services once per day while in the sixth grade during the 1992-93 school year. In addition to resource room services, the record reveals that the child received regular education remedial reading instruction during the 1992-93 school year. Her IEP included an annual goal for improving her independent reading skills, which was to be addressed in the resource room. There were three annual goals related to improving the child's writing skills, and one annual goal related to improving her organizational and study skills.

In the Spring of 1992, petitioners requested that their daughter be independently evaluated at respondent's expense. In June, 1992, the child received a neuropsychological evaluation at the New York Hospital-Cornell Medical Center. The results of selected IQ subtests administered to the child were comparable to those reported by respondent's school psychologist in March, 1992. The independent evaluator reported that the child's single word reading skills were in the low average range (beginning third grade level), while her basal vocabulary was at a 4.8 grade equivalent. On a decoding skills test, the child was able to read aloud at a 4.2 grade level. Her reading comprehension was reported to be at a 6.4 grade level. However, the child's spelling skills were found to be at the beginning third grade level. The evaluator opined that the child exhibited a " ... residua of a subtype of a developmental language disability characterized by a phonemic sequencing deficit and graphomotor dyscoordination - each of which is currently in the mild range." He recommended that the child receive individualized instruction in reading, and that she use a word processor with a spellcheck program for written assignments. The evaluator asserted that it was essential for the child's remedial program to encourage her to develop initiative and independent work habits.

On a standardized group test administered at the beginning of sixth grade, the child achieved a reading vocabulary score at a 5.3 grade equivalent and a reading comprehension score at a 5.9 grade equivalent. Her total reading score was at a 5.5 grade equivalent. The child's mathematics skills were at a 6.1 grade equivalent. Her language mechanics and expression were at 3.5 and 2.6 grade equivalents respectively, and her spelling skills were at a 2.4 grade equivalent. When her IEP for the 1992-93 school year was reviewed at the end of the year, it was reported that the child had achieved her single reading goal with regard to independent reading for content. However, her writing objectives were not satisfactorily completed, but were described as ongoing. Two of the child's three study skill goals had been successfully completed during the year. On her report card for the 1991-92 school year, the child's final grades were all "A's" and "B's". She was also enrolled in an enrichment program while in the sixth grade.

On June 29, 1993, the CSE recommended that the child receive two periods per day of resource room services while in the seventh grade during the 1993-94 school year. The minutes of the CSE meeting reveal that the CSE intended to have the child receive special education instruction in reading, using the Alphabetic Phonics approach, in one of the two resource room classes. At the hearing in this proceeding, the resource room teacher testified that she used a variety of techniques with the child, including a form of the Orton-Gillingham technique known as Preventing Academic Failure (PAF). The other resource room class was to support the child's instruction in her regular education classes, develop her keyboarding skills, and improve her writing skills. The CSE also recommended that alternative methods of note taking be used by the child, and that she be evaluated by an occupational therapist. The child's IEP included four annual goals related to her writing skills, and a single annual goal to improve her organizational and study skills. The IEP indicated that an Alphabetic Phonics baseline would be established for the child, but did not include any annual goal for her reading skills.

On standardized group tests administered in October, 1993, the child achieved grade equivalent scores of 5.9 in reading vocabulary, 6.1 in reading comprehension, and 6.0 in total reading. She also received grade equivalent scores of 7.1 in language mechanics, 4.1 in language expression, and 5.8 in total language. Language expression included the use of various parts of speech, sentence formation and combining, paragraph structure, and paragraph coherence. The child's total math score of 7.1 was appropriate for her grade level. The child received "A's" and "B's" in each of her academic subjects during the first two marking periods of the 1993-94 school year. Two of her teachers noted that other children took notes for petitioners' child. The resource room teacher who provided academic support for the child in her regular education classes testified at the hearing that the child had made progress in her written expression, and had become more of an independent learner, as the school year progressed. On standardized tests administered in December, 1993, the child achieved grade equivalent scores of 6.5 in total reading and 7.0 in total mathematics.

In October, 1993, the child was evaluated by an occupational therapist, who reported that the child did not appear to have serious difficulties in her sensory integrative skills, or her ability to process sensory information. She further reported that the child's graphomotor [handwriting] deficits were not the result of immature or inadequate central nervous system development. The evaluator indicated that the child had difficulty combining visual and motor demands, such as copying text from a typed sample, or from a blackboard. The evaluator recommended that the child receive occupational therapy for 30 minutes per week, and that the therapist consult with the child's teachers and parents once per month. In January, 1994, the CSE adopted the evaluator's recommendation. At the end of the 1993-94 school year, the child's occupational therapist reported that the child's ability to copy text had improved, but recommended that the child continue to receive occupational therapy in the 1994-95 school year.

In early February, 1994, the child's mother asked for a CSE meeting to discuss the child's academic progress. Petitioners were concerned that the child was not becoming an independent learner. They had hired the child's former tutor to provide her services during January and February, 1994. On February 28, 1994, the CSE discussed with petitioners, but did not formally recommend, the possible placement of the child in a BOCES gifted/disabled program. At the hearing in this proceeding, the child's mother testified that she had visited the BOCES program, which did not appear to be appropriate. Petitioners also considered placing the child in a private school.

On April 13, 1994, they had the child evaluated at the Windward School in White Plains, New York. The child achieved a standardized score of 84 in reading, which was the equivalent of the score of a child completing the fourth grade. Her standard score of 72 in spelling was the equivalent of the score of a child entering the third grade. By contrast, the child's standard score of 123 in mathematics was reported to be the equivalent of the score of a child at the end of the eleventh grade. The private school's evaluator opined that the child's performance on an unstandardized test of decoding skills indicated that the child had not mastered the skill of decoding words of more than one syllable, and that the child was an appropriate candidate for admission to the Windward School.

The CSE conducted its annual review of the child on June 3, 1994. It recommended that the child continue to receive resource room services for two periods per day while in the eighth grade during the 1994-95 school year. The CSE also recommended that the child receive occupational therapy once per week, and that the occupational therapist provide consultant services once per month. The child's IEP provided for two annual goals and five short-term instructional objectives for written language, and two annual goals and three short-term objectives relating to the child's social/emotional needs. With regard to the latter, it must be noted that the IEP did not indicate what, if any, special education service would be provided to address the child's social/emotional needs. It also did not include any annual goal for the child's occupational therapy. The minutes of the June 3 CSE meeting reveal that petitioners had already decided to enroll their daughter in the Windward School, and that they asked the CSE to recommend that respondent transport the child between her home and the private school. The CSE supported petitioners' request for transportation services.

Petitioners unilaterally enrolled their daughter in the Windward School for the 1994-95 school year, at a cost of approximately $17,000. The record reveals that respondent has provided transportation during the 1994-95 school year. By letter to respondent, dated December 22, 1994, petitioners asked that they be reimbursed for the cost of their child's tuition. Respondent's Superintendent of Schools denied petitioners' request. In a letter to the Superintendent of Schools, dated December 29, 1994, petitioners asked for an impartial hearing.

The hearing in this proceeding began on January 23, 1995, and concluded on February 10, 1995. The hearing officer rendered his decision on April 2, 1995. He found that the child's IEP for the 1994-95 school year was deficient because it failed to adequately describe the nature of the child's disability, by not reporting her current level of performance in reading decoding, and because the IEP did not include any annual goal to address the child's deficit in reading decoding skills. Based upon his finding with regard to the child's IEP, which he described as a "technical defect," the hearing officer remanded the matter to the CSE to revise the IEP. In doing so, he opined that the record indicated that respondent has provided in the past, and could have provided, an appropriate educational program for the child. With regard to petitioners' request for tuition reimbursement, the hearing officer held that the child's placement in a private school for children with disabilities was not the least restrictive environment for her, and therefore not consistent with the principles of the Individuals with Disabilities Education Act (20 USC 1400 et seq), under which they sought such reimbursement.

Although there is no dispute about the child's classification as learning disabled, the parties have distinctly different perceptions about the nature and extent of her disability. Petitioners contend that the child is "dyslexic", and that she requires an instructional program which places more emphasis on remediating the child's deficits in decoding (word attack skills) and encoding (spelling) than respondent has offered the child. Respondent acknowledges that the child has deficits in decoding and encoding, but argues that the child has good reading comprehension skills, which have enabled her to be successful in a largely mainstreamed educational program. Respondent perceives the child's primary educational deficit to be her significantly impaired writing skills, which respondent believes have been effectively addressed in the educational program which it has provided and which it offered to provide for the 1994-95 school year.

By their respective pleadings, the parties have raised a threshold issue about the extent to which the hearing officer's decision is to be reviewed in this appeal. 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]). Respondent bears the burden of proving that the educational services which it offered to petitioners' child were appropriate for her (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). Petitioners argue that the hearing officer correctly found that respondent failed to meet its burden of proof with respect to the appropriateness of the Burlington criteria for tuition reimbursement. They challenge the hearing officer's decision with respect to the second and third Burlington criteria, i.e., the appropriateness of the Windward School, and the equitable factors, if any, which favor awarding petitioners tuition reimbursement. Respondent has not cross-appealed from the hearing officer's decision, but nevertheless argues that the record demonstrates that it had offered an appropriate program to the child for the 1994-95 school year. The hearing officer found that respondent's proposed IEP was deficient, but opined that her educational program in the school district was calculated to provide the child with an appropriate education. Nevertheless, the hearing officer also indicated in his decision that: "Having concluded the 1994-95 IEP as not appropriate for [the child], the first criterion under Burlington, I now direct my attention to the second criterion." (Decision, page 15)

Federal and State statutes provide that a hearing officer's decision is final and binding upon both parties, unless appealed to the State Review Officer (20 USC 1415 [c]; Section 4404 [1] of the Education Law). Although I do not necessarily agree with the hearing officer's findings with respect to the adequacy of the child's IEP, or the significance of the defects in the IEP which he found in determining whether respondent had met its burden of proof on the appropriateness of its educational program, I am precluded from reaching those issues by respondent's failure to appeal or cross-appeal from the hearing officer's decision (Application of a Child with a Disability, Appeal No. 95-8). Accordingly, this appeal must be limited to the second and third criteria under the Burlington decision.

Petitioners bear the burden of proving the appropriateness of the child's placement in the Windward School for the 1994-95 school year (Application of a Child with a Disability, Appeal No. 94-29; Application of the Board of Education of the Monroe-Woodbury Central School District, Appeal No. 94-34). They must show that the services provided to the child at the Windward School were "proper under the Act [Individuals with Disabilities Education Act]" (School Committee of the Town of Burlington, supra 370). The record reveals that the Windward School has not been approved by the State Education Department as a school for children with disabilities for purposes of State reimbursement to school districts for tuition costs. However, that fact is not dispositive of petitioners' claim for tuition reimbursement (Florence County School District Four et al. v. Carter by Carter, U.S. , 114 S. Ct. 361 [1993]).

At the hearing in this proceeding, an administrator of the Windward School testified that the school provides an academically oriented program in a structured setting for remediation of dyslexic youngsters. The term "dyslexic" was not defined by the administrator, but was apparently intended to mean an impairment of the ability to decode or encode. The administrator also testified that the Windward School uses the Orton-Gillingham method to teach reading decoding, and that encoding (spelling) is taught simultaneously with decoding. She referred in her testimony to the use of PAF at Windward. PAF was the program which respondent provided to the child in one of her two seventh grade resource room classes. She further testified that petitioners' daughter received 3 periods of language arts per day: reading, writing, and skills. In reading, the child was reportedly using books which were basically one year below her grade level. For the "skills period," the child was reportedly grouped with other seventh and eighth grade children who were working at the basic level in the Orton-Gillingham method, learning to decode simple words. The parties sharply dispute the significance of the scores which the child achieved in tests administered to her at Windward in May, 1994 and January, 1995. I find the scores are too equivocal to establish that the child has made significant gains, as claimed by petitioners, or that she has not made progress, as claimed by respondent, especially since the child had been in the private school for a relatively short period of time when she was tested in January, 1995. There is, however, another element of the school's appropriateness as a placement for this child which must be considered.

The record reveals that the Windward School, which is about one hour's drive from petitioner's home, serves only children with disabilities. In his decision, the hearing officer found that the Windward School was an inappropriate placement because it was not the least restrictive environment. Petitioners argue that the hearing officer's reliance upon the decision in Doe v. Board of Education of Tullahoma City Schools, 9 F. 3d 455 (6th Cir., 1993), cert. den. 114 S. Ct. 2104 (1994), was misplaced because the Court in Doe held that the placement offered by the school district was appropriate. I agree. Although the Court discussed the concept of a least restrictive environment, it premised its decision to deny tuition reimbursement upon a finding that an appropriate public placement had been offered. Petitioners further argue that the hearing officer's decision conflicts with the decisions of the United States Supreme Court in the Burlington and Carter cases, because it precludes petitioners from attaining the "self-help" remedy of placing their child in a private school which specializes in addressing the child's learning disabilities.

The Federal Individuals with Disabilities Education Act (IDEA) requires each state to establish:

"procedures to assure that, to the maximum extent appropriate, children with disabilities, including children in public or private institutions or other care facilities, are educated with children who are not disabled, and that special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only when the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily ... " (20 USC 1412 [5][B])

Federal regulations require each school district to ensure that a continuum of alternative placements, from instruction in regular education classes to instruction in hospitals and institutions, is available to implement the IEP of each child with a disability (34 CFR 300.551-552). The statutory and regulatory requirement for placement of children with disabilities in the least restrictive environment is a presumption which must be balanced against the importance of providing an appropriate education to those children (Briggs v. Board of Education of the State of Connecticut, 882 F. 2d 688 [2nd Cir., 1989]). Nevertheless, placement in the least restrictive environment is an important consideration in determining whether a school district has met its obligation to provide its children with disabilities with a free appropriate public education.

In Florence County School District Four et al., supra, the Supreme Court held that parents are not required to place their children in State approved private schools in order to obtain tuition reimbursement when they have not been offered appropriate public placements. However, it does not follow that a placement, which if made by a school district would have been in conflict with the least restrictive requirement, would be appropriate because it was made by the child's parents. I find that the requirement that a child be placed in the least restrictive environment applies to unilateral parental placements (P.J. v. State of Connecticut, 788 F. Supp. 673 [D. Conn., 1972]; Application of a Child with a Handicapping Condition, Appeal No. 92-7, decision sustained subnom. Lord v. Bd. of Ed. Fairport Central School District et al., 92-CV-6286 [W.D.NY, 1994]).

In this instance, the record reveals that petitioners' child had been academically successful in respondent's regular education classes, with supplementary assistance in her resource room classes, prior to her placement by petitioners in the Windward School. Although petitioner, and the administrator in the Windward School who testified at the hearing perceived the child as having a severe reading disorder which impaired her ability to benefit from instruction in regular education, I find that the record does not support their perception, either with regard to the child's success in school or in the impact of her reading decoding deficit upon her ability to comprehend instructional material on an appropriate grade level. The testimony by Ms. Lotrecchiano, one of the child's seventh grade resource room teachers, that the child was a functional reader, i.e., could comprehend, at the seventh grade level was not refuted by any evidence in the record. Her testimony that the child had performed capably in her mainstreamed courses during the 1993-94 school year is also unrebutted. Under the circumstances, I find that the child's placement in a private school over an hour away from her home, with no opportunity for receiving regular education with non-disabled peers, was unwarrantedly restrictive, in the absence of proof that no other less restrictive placement was available to petitioners. Accordingly, I must dismiss their appeal, without reaching the third Burlington criterion.

THE APPEAL IS DISMISSED.