95-064

       Petitioners appeal from the decision of an impartial hearing officer which denied petitioners' request for reimbursement for their expenditures for their child's tuition at the private school in which petitioners unilaterally placed their child for the 1994-95 school year. The hearing officer denied petitioners' request because he found that respondent had offered an appropriate program to the child. The appeal must be dismissed.

        Petitioners' son is 13 years old. During the 1994-95 school year, the child was enrolled by petitioners, at their expense, in the seventh grade of the Windward School, which is a private school located in White Plains, New York. Respondent transported the child to the Windward School. The Windward School, which reportedly serves children with learning disabilities, has not been approved by the State Education Department as a school for children with disabilities, for the purpose of providing State reimbursement to school districts which place children in that private school. Prior to November 9, 1993, a parent was precluded from obtaining tuition reimbursement at an unapproved private school (Tucker v. Bay Shore UFSD, 873 F. 2d 563 [2d Cir., 1989]; Lombardi v. Nyquist, 63 AD 2d 1058 [3rd Dept., 1978]). On November 9, 1993, the U.S. Supreme Court held that a parent could obtain reimbursement for tuition in an unapproved school, if the private school provided the child with an appropriate education (Florence County School District v. Carter by Carter, __ U.S. __, 114 S. Ct. 361 [1993]). However, the appropriateness of the private school's program is only one of three criteria which must be used to determine a parent's claim for tuition reimbursement. A board of education may be required to reimburse parents for the cost of a child's educational services obtained by the 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 for reimbursement (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]; Hiller v. Bd. of Ed. Brunswick CSD, 674 F. Supp. 73 [N.D.N.Y., 1987]; Application of a Child with a Disability, Appeal No. 95-37).

        Petitioners' child reportedly achieved his developmental milestones at an appropriate age. The child entered the first grade in respondent's Midland School for the 1988-89 school year. He received remedial assistance from respondent, while he was in the third grade, and he was also privately tutored. In October, 1991, the child's fourth grade teacher referred the child to the child study team of the Midland School, because the teacher was concerned about the child's auditory processing skills, auditory memory, and attention span. Petitioners reportedly did not consent to have the child completely evaluated, but they agreed to have a speech/language evaluation performed. In December, 1991, the child was found by respondent's speech/language therapist to have moderate auditory processing difficulties, and some mild expressive speech deficits. His language skills were reported to be satisfactory. With petitioners' approval, the child received small group speech/language therapy for the remainder of the 1991-92 school year.

        The child continued to receive speech/language therapy while in the fifth grade during the 1992-93 school year. In October, 1992, the child began to receive psychotherapy from a private psychologist. At the hearing in this proceeding, the psychologist testified that he had diagnosed the child as having an attention deficit hyperactivity disorder. The child was referred by his mother to respondent's committee on special education (CSE) in the Fall of 1992.

        Respondent's school psychologist, who evaluated the child in December, 1992, reported that the child achieved a verbal IQ score of 126, a performance IQ score of 117, and a full scale IQ score of 124. The school psychologist noted that the child had achieved those scores on an individually administered intelligence test, and reported that the boy's scores on that test were higher than those which the child had achieved in the preceding year on a group administered Cognitive Abilities Test. She opined that the results of the individually administered IQ test more accurately reflected the child's actual strengths and weaknesses than did the results of the group administered test. On the Peabody Individual Achievement Test - Revised, the child achieved standard scores of 108 in general information, 106 in reading recognition, 105 in reading comprehension, 117 in mathematics, and 101 in spelling. The school psychologist reported that the child exhibited relative weakness in graphomotor (handwriting) speed, written expression, visual comprehension and visual recall. She indicated that the child's academic achievement was at an age appropriate level for his age, but below what would be expected for a child of his intelligence. Projective testing revealed that the child felt pressured at home and in school. The school psychologist noted that the child became anxious when faced with a challenge, but reacted positively to multisensory cues, clear structure and direction, and reassurance. She also reported that the child's anxiety interfered with his ability to function at a level consistent with his intelligence. The school psychologist subsequently observed the child in his speech/language therapy class. She reported that the boy was more animated and spontaneous in his class than he had been during her earlier evaluation of him.

        In January, 1993, the child was re-evaluated by respondent's speech/language therapist, who reported that the child's auditory processing skills had improved, and that he had a greater awareness of the need to stay focused on auditory tasks. Nevertheless, she reported that the child told her that it was difficult for him to remain focused all day in school. The child's scores on various tests of his language skills were within normal limits. The speech/language therapist reported that the child's functional listening skills had significantly improved, particularly in the area of following oral directions. His ability to formulate sentences had also significantly improved. The speech/language therapist cautioned that the child's test results were achieved in individual, untimed testing, which was important for the child because he required much reassurance while working. She opined that the child's language potential was greater than was indicated by the child's performance in class. The speech/language therapist recommended that the child continue to receive speech/language therapy twice per week in a small group.

        On January 19, 1993, the CSE recommended that the child be classified as learning disabled. The minutes of the CSE meeting indicate that the CSE based its recommendation upon the fact that the child's academic performance was uneven despite his strong cognitive skills. The CSE also recommended that the child receive a combination of consultant teacher and resource room services for two hours per week, and that he continue to receive speech/language therapy twice per week in a small group. The child's individualized education program (IEP) provided that his academic testing would be done with extended time limits and in a special location. The IEP included annual goals for the child to improve his written expression, receptive language skills, and organizational and study skills.

        In April, 1993, the child's speech/language therapist reported that the child's auditory memory, auditory processing and verbal expression skills had improved. The therapist recommended that the child's speech/language therapy be discontinued at the end of the 1992-93 school year. On May 3, 1993, the CSE conducted its annual review of the child. It recommended that the child remain classified as learning disabled while in the sixth grade in the Rye Middle School, during the 1993-94 school year. The CSE also recommended that the child receive a combination of consultant teacher and resource room services for 40 minutes per day, five days a week. The CSE did not recommend that the child receive speech/language therapy, but did provide for the use of the same testing modifications which had appeared on the child's prior IEP. In contrast to the prior IEP, the IEP for the 1993-94 school year did not include an annual goal for improving the child's written expression. While many of the short-term instructional objectives for the 1993-94 school year were the same or similar to those for the 1992-93 school year with regard to the child's organizational and study skills, the 1993-94 IEP included an additional annual goal and related objectives for improving the child's strategies in taking tests. Petitioners did not object to the CSE's recommendations.

        During the 1993-94 school year, the child was enrolled in regular education language arts, social studies, mathematics, science, French, music, and physical education classes. His instruction in language arts and social studies was provided in a class of 42 children by a social studies teacher and a language arts teacher, who used the team teaching technique. Some of their instruction was provided to all of the children together, but the teachers also worked with groups of eight to ten children on projects and other activities. The child's consultant teacher, who was also in the classroom for language arts and social studies, worked with petitioners' child on a regular basis, in a group of approximately eight children. The child's other classes averaged about 21 children per class. The child's language arts, social studies, science and mathematics courses were modified for him, so that he was given less work than other children and was not required to answer every test question. The modifications were arranged by the child's regular education teachers, with the advice of his consultant teacher. The child's language arts, social studies, and mathematics teachers testified at the hearing in this proceeding that the child was held to achieving the same levels of knowledge in their subjects as were his non-disabled peers.

        With the exception of a grade of D in science, the child achieved grades of B's and C's in all of his courses during the first marking period of the 1993-94 school year. In the second marking period, his grade in science improved to a C, while his grade in French dropped from a C to a D. An improvement in his social studies grade from a C to a B was offset by a decrease in his mathematics grade from a B to a C. The child's academic performance deteriorated in the third marking period, when he received D's in mathematics, language arts and science and a C in social studies. In the fourth marking period, the child received D's in language arts, social studies, and science, and a C in mathematics. His final grades for the 1993-94 school year were a D in language arts, a C in mathematics, a C in social studies, and a D in science. Although the child received letter grades in French during the first two marking periods, he thereafter received the grade of "P" (Pass) in that course. In April, 1994, the child achieved standard scores of 107 in basic reading, 119 in reading comprehension, 118 in mathematics reasoning, and 115 in numerical operations on the Wechsler Individual Achievement Test (WIAT). Nevertheless, he failed to achieve a score at or above the statewide reference point on the sixth grade Pupil Evaluation Program reading test.

        On April 19, 1994, the CSE conducted its annual review of the child, and made its recommendations for the 1994-95 school year. It recommended that the child continue to be classified as learning disabled. It further recommended that the child receive one period per day of a combination of consultant teacher services and "study skills" in a self-contained special education class. However, it recommended that the child continue to receive all of his academic instruction in regular education classes. The child's IEP for the 1994-95 school year included provisions for extended time limits and separate locations for academic tests. The IEP included one annual goal for developing and improving the child's organizational and study skills, and one annual goal for developing and improving his writing skills.

        The CSE's recommendations were reportedly approved by respondent, on June 20, 1994. However a typed copy of the IEP was not prepared until around the middle of July, 1994, when it was reportedly mailed to petitioners. At the hearing, the child's mother conceded that she had received a copy of the IEP during the summer. By letter dated September 12, 1994, petitioners were informed that respondent had approved the CSE's recommendations. Before they were notified of respondent's approval of the recommendations, petitioners had unilaterally enrolled the child in the Windward School.

        The record does not reveal when petitioners requested than an impartial hearing be held to review the CSE's recommendations for the 1994-95 school year. On February 7, 1995, petitioner appointed the hearing officer in this proceeding. The hearing began on March 2, 1995, and concluded on June 7, 1995.

        In his decision, which was dated July 26, 1995, the hearing officer found that petitioners had not received a copy of the child's 1994-95 IEP in July, 1994, but held that respondent's failure to provide petitioners with a copy of the IEP on a timely basis did not per se afford a basis for awarding petitioners tuition reimbursement. He rejected petitioners' contention that the child's 1994-95 IEP merely duplicated his 1993-94 IEP. The hearing officer found that respondent had demonstrated that the 1994-95 IEP was appropriate for the child, and that the private school in which he had been placed by petitioners was not the least restrictive environment for the child. Therefore, the hearing officer denied petitioners' request for tuition reimbursement.

        The child's classification as learning disabled is not disputed in this proceeding. Therefore, I do not address the issue of whether the record supports the child's classification as learning disabled (Hiller v. Bd. of Ed. Brunswick CSD et al., 674 F. Supp. 73 [N.D.N.Y., 1987]; Application of a Child with a Disability, Appeal No. 93-42).

        The board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (Matter of Handicapped Child, 22 Ed. Dept. Rep. 487; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Child with a Disability, Appeal No. 93-9). To meet its burden, the board of education 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 [1982]), and that the recommended program is the least restrictive environment for the child (34 CFR 300.550 [b]; 8 NYCRR 200.6[a][1]). An appropriate program begins with an IEP which accurately reflects the results of 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).

        Petitioners challenge the CSE's recommendation for the 1994-95 school year on both procedural and substantive grounds. They acknowledge that they received a copy of the child's proposed IEP for the 1994-95 school year, which in New York was the CSE's recommendation (8 NYCRR 200.4 [c]), in July, 1994, before the commencement of classes for the 1994-95 school year. They do not challenge the adequacy of the notice of the CSE's recommendation, which is not included in the record of this appeal. However, they assert that they were not apprised of respondent's "final adoption" of the IEP, until after classes had begun for the 1994-95 school year. Petitioners are referring to the fact that they were notified of the board of education's approval of the CSE's recommendation in a letter to petitioners which was dated September 12, 1994.

        State regulation requires that a board of education notify the parents of its approval of the CSE's recommendation and arrange for the child's placement within 30 days of the CSE's recommendation (8 NYCRR 200.5 [b][5]). The record reveals that respondent approved the CSE's recommendation at respondent's meeting on June 20, 1994, but inexplicably delayed notifying petitioners of its approval until September 12, 1995. Nevertheless, this is not a case in which the CSE failed to make its recommendation prior to the start of the school year, which would afford a basis for finding that respondent had failed to offer an appropriate placement (Application of a Child with a Disability, Appeal No. 94-4; Application of Bd. of Ed. Waterville CSD, Appeal No. 95-12). At the hearing in this proceeding, the CSE chairperson testified that the proposed study skills class placement had been discussed with the child's mother at the April 19, 1994 CSE meeting. The child's mother testified that she had decided to place the child in the Windward School, prior to receiving a July 6, 1994 letter from school about the child's PEP test results, and before she had received the proposed IEP. While I do not condone respondent's failure to promptly notify petitioners of its approval of the CSE's recommendation, I find that respondent's lapse does not provide an adequate basis for concluding that respondent failed to offer an appropriate program for the 1994-95 school year.

        Petitioners challenge their child's IEP on the ground that the CSE allegedly used outdated reports in making its recommendation. However, the child's 1994-95 IEP reflects the results of the child's most recent standardized achievement test, the April 15, 1994 WIAT. Although the IEP descriptions of the child's levels of social and physical development and his managements were identical with those which appeared on his 1993-94 IEP, there is no evidence in the record that the child's levels of development, or management needs, had changed in the interval. I find that the child's IEP accurately identified his special education needs.

        Petitioners' primary objection to the 1994-95 IEP is that it did not, in their opinion, provide for the use of appropriate special education services to address their son's special education needs. They assert that the CSE failed to recommend that the child receive special assistance in learning to read, and that the child's PEP test results demonstrated that he required special assistance in reading. The record reveals that the PEP test results were not yet available to the CSE when it conducted its annual review. More importantly, the CSE did have the results of the individually administered WIAT. The child's standard scores on the WIAT, which were consistent with his standard scores on the 1993 Peabody Individual Achievement Test-Revised, did not indicate that he had a significant problem in reading. At the hearing, the child's consultant teacher during the 1993-94 school year testified that the child did not have trouble reading, but did have difficulty expressing himself in writing. The consultant teacher described the specialized "SQ3R" program which he had used to assist the child in both reading and writing. He further testified that the same program would have been used in the 1994-95 school year, and that he had trained the regular education team teachers to use the program.

        Petitioners also assert that the program which the CSE recommended for the 1994-95 school year was virtually identical to that which had been provided to the child during the 1993-94 school year, and that the child had been unsuccessful in the 1993-94 program. They contend that respondent has attempted to avoid responsibility for the child's lack of success during the 1993-94 school year by blaming the child for not trying hard enough to achieve in school, and failing to avail himself of the remedial assistance which was available to him during the last period of the school day.

        The record reveals that the child's academic performance during the 1993-94 school year was inconsistent. The parties have offered sharply differing explanations for the child's performance in school. I find that the variations in the child's performance reflected, at least in part, the nature of his disability, which is manifested by his disorganization. During the 1993-94 school year, the child's special education program of consultant teacher and resource room services focused upon remediating his academic skills. However, the focus of the consultant teacher services and study skills class which were recommended for the 1994-95 school year was to address the child's disorganization, and to make him an effective learner, and to improve his ability to write. Although the child's 1993-94 IEP included many short-term objectives for improving his study skills, the 1994-95 IEP study skill objectives concentrated on the development of a few skills which were essential for the child to become an effective learner in his regular education classes. The IEP annual goal to improve the child's written expression was clearly appropriate to address a weakness which impaired his academic performance. I find that the recommended program was not the same as the 1993-94 program. I further find that the recommended program was an appropriate means of addressing the child's special education needs in the least restrictive environment, because there is no evidence that his IEP annual goals could not have been achieved in the recommended program, which would have enabled the child to continue receiving virtually all of his academic instruction in regular education classes.

        I note that petitioners have annexed a copy of the CSE's recommendation for the 1995-96 school year to their petition. For the 1995-96 school year, the CSE has recommended that the child's classification be changed to other health impaired, and that he be instructed in academic subjects in a self-contained special education class. Petitioner asserts that the CSE's 1995-96 recommendation supports their contention that the CSE's 1994-95 recommendation was inappropriate. I disagree. Respondent was obligated to provide a program which was reasonably calculated to allow the child to receive educational benefits for the 1994-95 school year. I find that the record before me reveals that respondent met its obligation to offer a program which was reasonably calculated at that time to allow the child to receive educational benefits. The appropriateness of the program which the CSE has recommended for the 1995-96 school year is not an issue which is before me in this proceeding.

        In view of my finding that respondent has demonstrated that it had offered petitioners' child an appropriate educational program for the 1994-95 school year, petitioners' request for tuition reimbursement must be denied (School Committee of the Town of Burlington v. Department of Education, Massachusetts, supra).

THE APPEAL IS DISMISSED.