95-061

         Petitioner appeals from the decision of an impartial hearing officer which upheld the recommendation by respondent's committee on special education (CSE) to place petitioner's daughter in a special education class of the Board of Cooperative Educational Services of the First Supervisory District of Monroe County (BOCES I), and which denied petitioner's claim for tuition reimbursement for the private school in which petitioner had unilaterally placed the child. The appeal must be sustained.

        Petitioner's child attended kindergarten in Calverton, Maryland during the 1986-87 school year. She attended first grade in Gaithersburg, Maryland. During the 1988-89 school year, she received resource support and speech/language therapy, while repeating the first grade. A school psychologist who evaluated the child in June, 1989 reported that the child obtained a verbal IQ score of 82, a performance IQ score of 104, and a full scale IQ score of 91. The child exhibited relative strength in visual sequencing, and deficits in visual motor integration and short-term auditory memory. The school psychologist reported that the child was motivated, but had a severe deficit in her reading skills. She described the girl as learning disabled, and recommended that she be placed in a class with a low child to teacher ratio. The child and her family moved to New York State after the 1988-89 school year.

        In September, 1989, the child was enrolled in a self-contained 12:1+1 special education class of the East Irondequoit Central School District. She remained in the special education program of East Irondequoit through the 1991-92 school year. The child received speech/language therapy to address a mild speech articulation disorder and a moderate language disorder. The East Irondequoit speech/language therapist reported that the child's weak short-term auditory memory skills impaired the development of her reading, mathematics and language skills. In a triennial psychological evaluation performed in April, 1992, the child achieved a verbal IQ score of 80, a performance IQ score of 83, and a full scale IQ score of 80. She exhibited a five-year delay in a test of her visual perceptual skills. In academic achievement tests, she obtained standard scores of 76 in mathematics, 71 in reading, and 71 in spelling. The East Irondequoit School psychologist reported that the child evidenced auditory discrimination and expressive language difficulties during the evaluation, and recommended that the child remain in a self-contained class. The East Irondequoit CSE recommended that the child remain in a 12:1+1 class for all instruction, except music, art and physical education, during the 1992-93 school year.

        In September, 1992, the child was enrolled in a 12:1+1 special education class for the fifth grade in respondent's Lakeshore Elementary School. The child was mainstreamed for special subjects, e.g., music, art and physical education, and after a few weeks in school, she was mainstreamed into a fourth grade class for mathematics. The child received speech/language therapy and counseling, in small groups, during the 1992-93 school year. The child's special education teacher testified at the hearing in this proceeding that the child's reading and writing skills were at about the early second grade level, but that she had been instructed in social studies and science with the use of a modified fourth to fifth grade level curriculum.

        The teacher further testified that the child had initially gotten along well with her classmates, but had not formed strong friendships with her disabled peers, some of whom appeared to be jealous of the child's success in a mainstreamed mathematics class. Petitioner's daughter began to have difficulty with a female classmate. The teacher testified that the female classmate tended to tease or push other children, and that most of the problems between the two children occurred in unstructured settings, such as the cafeteria or the school hallways. The teacher also testified that petitioner's daughter tended to overreact to incidents.

In February, 1993, the child's speech/language therapist reported that the child continued to exhibit some mild speech articulation errors. The therapist also reported that the child had a mild receptive language impairment, and a moderate to severe expressive language impairment. She noted that the child had difficulty with short-term auditory memory, interpretation of aural information, identification of the essential or main idea, organization of ideas, and formulation of complete and concise statements. Respondent's school psychologist, who tested the child in February, 1993, reported that the child achieved grade equivalent scores of 1.8 in letter-word identification, 1.7 in passage comprehension, 5.4 in mathematical calculation, 4.0 in applied mathematical problems, and 3.8 in science. The child also demonstrated an improvement in her visual motor skills. The school psychologist recommended that the child remain in her special education class, with mainstreaming for mathematics and special subjects. On February 11, 1993, the CSE recommended that the child remain in her special education program for the duration of the 1992-93 school year.

The child's special education teacher testified that the child made slow, but steady, academic progress during the 1992-93 school year. On standardized tests administered in May, 1993, the child achieved grade equivalent scores of 2.4 in reading, 2.9 in reading comprehension, 2.1 in spelling, 5.1 in mathematical computation, and 3.1 in mathematical applications.

On June 18, 1993, respondent's CSE recommended that the child be placed in a 15:1+1 special education class for the sixth grade during the 1993-94 school year. It also recommended that the school building staff determine the subjects in which the child should be instructed in regular education classes (cf. 34 CFR 300.346 [a][3]). Although the child's individualized education program (IEP) which the CSE prepared indicated that the child was to attend respondent's Athena Middle School, she was in fact placed in respondent's Apollo Middle School, so that she would not attend the same school as the child with whom she had difficulties during the 1992-93 school year.

At the hearing in this proceeding, the child's primary special education teacher during the 1993-94 school year testified that the child had been cooperative in class and enthusiastic about learning. The teacher testified that the child had difficulty with decoding words in reading, and difficulty in writing. She explained that the child could discern individual sounds, but had trouble blending the sounds into words. She also testified that the child could memorize spelling words on a list, but had difficulty using the words in writing. The teacher further testified that the child had done well in "content areas" like science, and social studies, because she was a good listener and a conscious student. The child received reading instruction from another teacher, who used a highly structured decoding program. On her report card, the child received B's in language arts, social studies and science, and a C in mathematics. She received A's and B's in her special subjects during the 1993-94 school year.

The child reportedly had difficulty socially while in the sixth grade. The child's primary special education teacher reported that the child was socially immature and that other children had made fun of her in her special subject classes and in unstructured situations, e.g., hallways or cafeteria. The teacher further testified that on occasion, the child remained out of school for one or two days after an upsetting incident. Petitioner testified that the child had been harassed by other children in school, and had ceased to participate in a school play after being harassed. In February, 1994, petitioner and her husband engaged the service of a social worker to provide counseling to the child, at the parents' expense. The social worker testified that when she began working with petitioner's daughter, the child was stressed, and histrionic, i.e., tended to have exaggerated emotional responses. The social worker further testified that the child would regress, cry, or become hysterical, when faced with problems or situations which were stressful. The social worker testified that she worked with the child to increase the child's coping skills, and to improve her self-esteem.

On March 23, 1994, a building-level CSE recommended that the child remain enrolled in a 15:1+1 special education class, and that she continue to receive speech/language therapy, during the 1994-95 school year. Petitioner objected to the recommendation by the building-level CSE. On June 8, 1994, the child's parents met with the district-level CSE, which recommended that an application for admission be made to the Norman Howard School. The Norman Howard School is a private school which has been approved by the State Education Department as a school for learning disabled children. The child's private social worker subsequently wrote to the CSE chairperson to indicate her support for the child's placement in the Norman Howard School.

On June 24, 1994, respondent's school psychologist evaluated the child for her triennial evaluation. The school psychologist reported that the child had achieved grade equivalent scores of 3.1 in word identification, 3.4 in word attack, and 3.3 in passage comprehension. She noted that the child's sight vocabulary, knowledge of decoding rules, and reading comprehension had improved by at least one grade level since she was last evaluated in February, 1993. The school psychologist reported that the child was especially good at basic mathematical calculations, but that her teacher had reported that the child had difficulty using calculations in practical applications and understanding word problems. She noted that the child's performance on mathematical operations had improved from the 25th to the 34th percentile since she was last evaluated. In addition to a special education class, the psychologist recommended that the child also participate in a formally developed program of social skills and interpersonal relationships to improve her ability to perceive and interpret social situations and develop better strategies for handling social situations.

In a letter to respondent's Coordinator of Special Education, dated July 26, 1994, the Admissions Coordinator of the Norman Howard School reported that the private school could not effectively meet the child's educational needs. She explained that the curriculum of the Norman Howard School would exert too much academic pressure upon the child, and would negatively affect the child's self-image.

The CSE reconvened on August 24, 1994. At the meeting, petitioner and the child's social worker reportedly urged the CSE to reapply to the Norman Howard School, after the child had been evaluated at the Strong Memorial Hospital. The evaluation was allegedly to have been completed by the beginning of October 1994. The CSE chairperson testified that the social worker opined that returning the child to school in September, 1994 would not be in the child's best interest, particularly if the child's placement would be temporary pending her acceptance by the Norman Howard School. With petitioner's agreement, the CSE recommended that the child receive tutoring at home, until the completion of her evaluation at the Strong Memorial Hospital.

A psychological evaluation of the child was performed at the Strong Memorial Hospital on October 5, 1994. The child achieved a verbal IQ score of 90, a performance IQ score of 87, and a full scale IQ score of 87, indicating that her cognitive ability was in the low average range. She demonstrated relative strengths in understanding social norms and interpersonal behavior, and relative weakness in perceptual organization, abstract visualization, and mental computation. The evaluators noted that the child continued to feel inadequate when faced with challenging tasks and was likely to perceive her struggles in particular areas as personal failures. The child was described as having an avoidant coping style which may have deprived her of opportunities to improve her academic skills, or to benefit from corrective interpersonal experiences. The Strong Memorial Hospital evaluators recommended that the child be educated in a supervised setting similar to her class during the 1993-94 school year, and noted that the child was likely to benefit from an environment in which non-classroom school activities were closely supervised. While recognizing that the child had benefitted in the short-term from being tutored at home, the evaluators opined that the child's anxieties about returning to school would increase the longer she remained at home. They also noted that some of the child's intellectual deficits appeared to be related to impulsivity, inattention, and poor concentration, and suggested that she might benefit from stimulant medication.

After the evaluation was completed at the Strong Memorial Hospital, the child spent three days at the Norman Howard School, during which she was interviewed and attended classes. In a letter to respondent's Coordinator of Special Education, dated November 1, 1994, the Admissions Coordinator of the Norman Howard School indicated that the child appeared to be a hard working, motivated student, but that her expressive language difficulties impaired her performance in class and her work samples indicated that she had significant needs in the areas of comprehension, written language, and organization. In addition, she appeared to have significant social-emotional needs which required a great deal of teacher attention. The Admissions Coordinator reported that the Norman Howard School was unable to meet the child's educational needs.

The CSE did not meet again until January 19, 1995, at which time it received a copy of the psychological evaluation performed at the Strong Memorial Hospital. The CSE discussed the nature of the educational program which would be appropriate for the child, but did not recommend a specific placement for the child. Instead, it recommended that the child be placed in a special education program of either the BOCES I or the Board of Cooperative Educational Services of Monroe and Orleans Counties (BOCES II). At the CSE meeting, petitioner asked to be afforded the opportunity to visit the child's prospective class before the child was placed in the class. She testified at the hearing that the CSE had agreed to her request, but that she was subsequently contacted by one of respondent's employees about arrangements for the child to be transported to a BOCES II class in the Hilton Central School District. On February 15, 1995, petitioner and the child visited the Hilton class with a BOCES II representative. While there, they discovered that the child with whom petitioner's daughter had so much conflict during the 1992-93 school year was enrolled in the Hilton class. Petitioner rejected the proposed placement in the BOCES II class in Hilton.

By letter dated March 9, 1995, petitioner asked for an impartial hearing regarding her daughter's educational program and placement. On or about March 6, 1995, petitioner enrolled her child in Hope Hall, which has been provisionally chartered by the Board of Regents as an alternative elementary school. However, it has not been approved by the State Education Department as a school for children with disabilities for the purpose of reimbursing school districts for the tuition of children placed in Hope Hall. At the hearing, petitioner testified, and the CSE chairperson conceded, that petitioner had asked the CSE for information about Hope Hall at the CSE's June 8, 1994 meeting. Notwithstanding her request for a hearing, petitioner visited proposed placements for her daughter in BOCES I classes in the Pittsford Central School District and the Brighton Central School District. In a letter to respondent's Coordinator of Special Education, dated March 30, 1995, the BOCES I Coordinator of Student Admissions offered a placement for the child in a 12:1 + 1 self-contained class in Brighton's Twelve Corners Middle School. The Coordinator of Special Education offered the placement to petitioner on March 30, 1995, but petitioner did not accept the offer. The child remained in Hope Hall's educational program.

By agreement of the parties, the hearing in this proceeding began on June 1, 1995, and concluded on June 2, 1995. The hearing officer rendered her decision on July 28, 1995. She found that the BOCES I special education class in Brighton was an appropriate placement for the child. While noting that there had been a delay in offering the child an appropriate placement, the hearing officer found that the record was unclear about why the CSE did not receive a copy of the Strong Memorial Hospital psychological evaluation until its January 19, 1995 meeting was held. Having found that respondent had offered the child an appropriate placement, the hearing officer denied petitioner's request for tuition reimbursement.

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]). The fact that the facility selected by the parents to provide special education services to the child is not approved as a school for children with disabilities by the State Education Department (as is the case here) is not dispositive of the parents' claim for tuition reimbursement (Florence County School District Four et al. v. Carter by Carter, ___ U.S. ___ , 114 S. Ct. 361 [1993]).

Petitioner challenges the appropriateness of the BOCES I class for her daughter, and the procedure by which the class was identified for the child. She asserts that the CSE did not provide her with adequate written notice of its recommendation after its January 19, 1995 meeting, and that respondent did not provide her with written notice of its approval of the CSE's recommendation. Federal and State regulations require that the parent of a child with a disability receive written notice of the CSE's recommendation (34 CFR 300.504 [a]; 8 NYCRR 200.5 [a] [4] [i]). The notice which a parent receives must indicate the other options which the CSE considered, and the reasons why those options were rejected. Respondent acknowledges that petitioner did not receive a written notice of the CSE's recommendation after the January 19, 1995 CSE meeting, but asserts that the CSE had not made a final recommendation at that time, and that it was precluded from finishing its task by petitioner's request for an impartial hearing. Since the CSE had not made a final recommendation, respondent argues that there was nothing for it to approve, and to give notice of its action to petitioner (See 8 NYCRR 200.5 [a] [5]). However, at the hearing in this proceeding the CSE chairperson and the CSE co-chairperson each testified that a form letter which refers to "the following recommendation" (petitioner's exhibit 45) was probably sent to the petitioner following the January 19, 1995 CSE meeting. Neither witness could identify what might have been sent with the letter to petitioner. Although I find that the purported CSE recommendation was improper, as will be discussed infra, I recommend to respondent that it provide for better documentation of its correspondence with a child's parents by including copies of the correspondence in the child's file.

Petitioner challenges the alleged CSE recommendation of January 19, 1995 on the ground that the CSE improperly delegated its responsibility to select an appropriate placement for petitioner's child to the two BOCES. State regulation provides that when a CSE makes its recommendation, it shall indicate the recommended program from the options set forth in 8 NYCRR 200.6, and shall indicate the recommended placement (8 NYCRR 200.4 [c] [2] [iv] and [ix]). That responsibility cannot be delegated to a BOCES, which is a provider of services recommended by a CSE and approved by a Board of Education (Application of a Child with a Handicapping Condition, 28 Ed. Dept. Rep. 376; Application of a Child with a Handicapping Condition, Appeal No. 92-3; Application of a Child with a Handicapping Condition, Appeal No. 92-25; Application of a Child with a Handicapping Condition, Appeal No. 92-33; Application of a Child with a Disability, Appeal No. 93-15).

Although petitioner's child was subsequently offered a placement in the BOCES I Brighton class by respondent's Coordinator of Special Education, there is no evidence in the record before me that the CSE has in fact recommended the BOCES I Brighton class for the child. Any change in the child's educational placement would have to be recommended by the CSE (Application of a Child with a Handicapping Condition, Appeal No. 92-34, judgment granted dismissing petition to review, Dorian G. v. Sobol et al., 93 CV 0687, U.S. D.C. E.D. N.Y., 1984). Petitioner's request for an impartial hearing did not preclude the CSE from making its recommendation for a specific placement (Norma P. et al. v. Pelham School District, 19 IDELR 938 [U.S. D.C. N.H., 1993]).

A parent's decision to unilaterally place a child in a private school does not relieve a board of education of its obligation to offer an appropriate public placement to the child, either in a private school or in a private school at public expense (Application of a Child with a Disability, Appeal No, 94-15). Although respondent correctly notes that Federal regulation does not require a board of education to pay for a child's tuition in a private school if the board of education has offered the child a free appropriate public education (34 CFR 300.403 [a]), I find that respondent's reliance upon the regulation is misplaced because it has not established that it offered the child a specific placement. Since respondent failed to offer the child an appropriate educational placement for the 1994-95 school year, I find that petitioner has prevailed with respect to the first Burlington criterion, i.e. whether the services offered by the board of education were inadequate or inappropriate.

Petitioner bears the burden of proof with respect to the second Burlington criterion, i.e., the appropriateness of the services which she obtained for the child at Hope Hall. In order to meet her burden, petitioner must show that those services were "proper under the act" [Individuals with Disabilities Education Act]" (School Committee of the Town of Burlington, supra 370), i.e., that the private school offered an instructional program which met the child's special education needs (Application of a Child with a Disability, Appeal No. 94-29). The private school need not employ certified special education teachers, nor have its own IEP for the child (Application of a Child with a Disability, Appeal No. 94-20).

Respondent contends that tuition reimbursement is not an available remedy in this proceeding because Hope Hall is not "designed specifically for children with disabilities". It points out that the Director of Hope Hall testified that Hope Hall has not sought State Education Department approval as a school for children with disabilities, and that she described Hope Hall as a "mainstream setting with special educational techniques" (Transcript of June 2, 1995, pg. 173). The Director further testified that only three of Hope Hall's teachers are certified special education teachers, and that only four of the twenty-two seventh grade students in Hope Hall have been classified as children with disabilities.

In Florence County School District Four et al. v. Carter by Carter, supra, the private school in which the child had been unilaterally placed by her parents, reportedly specialized in educating children with disabilities. More importantly, however, the lower Court had found that the private school had provided the child with an excellent education in substantial compliance with all of the substantive requirements of the Individuals with Disabilities Education Act (20 U.S.C. 1400 et seq.). The relevant question is whether the services provided to the child at Hope Hall addressed the child's identified special education needs (Application of the Board of Education of the Hendrick Hudson Central School District, Appeal No. 95-49).

In her IEP for the 1994-95 school year, petitioner's child was described as needing a small group setting with emphasis upon multi-sensory and language stimulation instruction, using hands-on application for reinforcement. In addition, she was described as needing to build confidence as a learner. The child's IEP also indicated that she needed to improve her social skills in all settings by acquiring an improved ability to perceive and interpret social cues, and to adopt strategies to cope with negative peer remarks. The record reveals that at Hope Hall the child worked with the same phonetically based program to improve her word identification skills as had been used by respondent, and that another specialized program was used to improve her reading comprehension skills. Her language arts teacher testified about the specialized techniques used at Hope Hall to improve the child's spelling skills, and described the individualized assistance given to the child to improve her writing skills. The language arts teacher testified that the child had completed, or could do, each of the short-term instructional objectives for language arts on her 1994-95 IEP. That teacher, who also instructed the child in mathematics, described the progress which the child had achieved in working on many of the IEP short-term objectives for mathematics.

The Director of Hope Hall, who was the child's reading and social studies teacher, testified about the "Mastery in Learning" program which she had developed for use throughout the curriculum in Hope Hall. She testified that information was presented to students using multisensory techniques and in small increments to enable the children to retain the information. Instruction is typically provided in classes of no more than 12 children, although some of this child's classes had 22 children for part of the school year. The Director further testified that the children who enter Hope Hall are working approximately two years below their grade levels, and are much more immature than their peers. The goal of Hope Hall is to get the children to view themselves as capable students, and to integrate their organizational and study skills. She also testified that petitioner's child received speech/language therapy while attending Hope Hall.

The Director, and the child's other teacher, also testified about the social development of petitioner's child while attending Hope Hall. They testified that the child had a number of friends at the private school, and was involved in various school extracurricular activities, including a once a week "Young Woman's Club" in which the members discuss their social problems with a social worker. The testimony about the child's educational and social progress while enrolled in Hope Hall was not rebutted. Upon the record before me, I find that respondent has met her burden of proof with regard to the appropriateness of the services provided to the child at Hope Hall during the period from March through June, 1995.

The last issue to be determined is whether equitable factors support an award of tuition reimbursement to petitioner, i.e. Burlington criterion. The record reveals that petitioner has cooperated with the CSE at all times relevant to this proceeding. In view of the extensive delay in finding appropriate placement for the child while she remained on home instruction, I find that equitable factors support the award of tuition reimbursement to petitioner.

THE APPEAL IS SUSTAINED.

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

IT IS FURTHER ORDERED that respondent shall reimburse petitioner for her expenditure for the child's tuition at Hope Hall during the period from March through June, 1995, upon petitioner's presentation to respondent of proof of such expenditures.